Final Orders re: Finality in Litigation iro Approach, Decree of Perpetual Silence, Sitting on Judgment & Superannuation

HH283-17 : IGNATIUS MASAMBA vs THE SECRETARY – JUDICIAL SERVICE COMMISSION and MERCY GORONGOZA
Ruled By: CHITAPI J

On 7 November 2016, the applicant filed this chamber application....,.The Nature of the ApplicationThe chamber application purports to be founded on Rule 449(1)(b) of the High Court Rules, 1971. The Rule provides as follows:“449 Correction, variation and rescission of judgments and orders(1) The court or a judge may, in addition ...

On 7 November 2016, the applicant filed this chamber application....,.

The Nature of the Application

The chamber application purports to be founded on Rule 449(1)(b) of the High Court Rules, 1971. The Rule provides as follows:

“449 Correction, variation and rescission of judgments and orders

(1) The court or a judge may, in addition to any other power it or he may have, mero motu or upon application of any party affected, correct, rescind or vary any judgment or order -

(a)…,.

(b) In which there is an ambiguity or a patent error or omission, but only to the extent of such ambiguity, error or omission; or

(c)…,.

(d) The court or a judge shall not make any order correcting, rescinding or varying a judgment or order unless satisfied that all parties whose interests may be affected have had notice of the order proposed.”

The Law

I consider it important to briefly deal with the interpretation which the courts have given to Rule 449(1)(b).

Firstly, it must always be borne in mind that when a court or judge is seized with a matter, once it or he pronounces judgment or an order on the matter, it or he becomes functus officio. The court or judge, as the case may be, will have discharged it or his function, rightly or wrongly, and may not revisit or change the determination or decision. A party who is not satisfied with the decision of the court or judge must, subject to any Rule relative thereto, take up the decision on appeal to the Supreme Court. I would say that at its simplest extrapolation, this is the procedure which a litigant who is not satisfied with a decision of the court or judge should follow or be guided by.

Rule 449 recognizes the fallibility of the court or judge inasmuch as decisions of the court are made by human beings. As human beings judges are not infallible.

The Rule, in addition to the common law inherent power of this court to supplement, clarify or correct its judgment, which power does not concern this judgment, allows the court or judge to revisit its judgment in which it or he is functus officio. The revisitation and the powers which the court or judge may exercise are not open ended. The powers which may be exercised, and the circumstances allowing for the revisitation, are circumscribed in the Rule. The court or judge will do so either on its or his accord or upon application by any affected party which means that in addition to the parties to the judgment, a party who was not party to the litigation can utilize the Rule if such party is affected by the judgment or order concerned where it was given in such party's absence; see Mashingaidze v Chipunza & Ors 2015 (2) ZLR 362.

Before the court or judge can correct, rescind or vary any judgment or order based on the provisions of Rule 449(1)(b) at the instance of a party, such party is required to point out to:

(a) The ambiguity; or

(b) Patent error; or

(c) The omission; sought to be relied upon to move the court or judge to exercise a discretion to make alterations to the judgment or order as the case may be.

In Wector Enterprises (Pvt) Ltd v Luxor (Pvt) Ltd 2015 (2) ZLR 57 (S) the learned ZIYAMBI JA gave an overview of the rationale behind Rule 449 generally in the following extract…,:

“Rule 449 of the Rules has been invoked, among other instances;

(i) Where there is a clerical error made by the court or judge; see City of Harare v Cinamon 1992 (1) ZLR 361 (S);

(ii) Where entry of appearance had been entered but not in the file at the time default judgment was entered; see Banda v Fitluk 1993 (2) ZLR 60 (H);

(iii) Where, at the time of issue of the judgment, the judge was unaware of a relevant fact, namely, a clause in an acknowledgement of debt; see Grantually (Pvt) Ltd & Anor v UDC 2000 (1) ZLR 361 (S)…,.

Where applicable, the Rule provides an expeditious way of correcting judgments obviously made in error. It envisages the party in whose absence the judgment was granted being able to place before the court the fact, or facts, which were not before the court granting the judgment. There is no need for the applicant to establish good and sufficient cause as required by Rule 63 of the Rules; See Banda v Pitluk (supra).

However, in each case, the error or mistake relied upon must be proved, and, in each case, the court exercises a discretion; see Gondo & Anor v Syfrets Merchant Bank Ltd 1997 (1) ZLR 201 (H)…,.

In any event, Rule 449 is not mandatory but confers upon the court a discretion to act in terms thereof…,.”

The decisions in Mashingaidze v Chipunza & Ors 2015 (2) ZLR 362 and Vector Enterprises (Pvt) Ltd v Luxor (Pvt) Ltd 2015 (2) ZLR 57 (S), specifically dealt with applications brought under Rule 449(1)(a). This notwithstanding the cases stand as a guide with respect to the overview of the purport of Rule 449 generally.

In Mpansi & Ors v Dube & Ors 2015 ZLR 1 (S), the learned HLATSHWAYO JA dealt with an application for correction or variation of a Supreme Court order pursuant to Rule 58 of the Supreme Court Rules 1964 as read with Rule 449 of the High Court Rules, 1971.

He corrected a costs order in which costs had been granted against the executor of a deceased estate in his personal capacity. The order of costs had not specified that the costs of appeal be borne by the estate. The order had simply read, inter-alia, that; “The appeal is allowed with costs.” Since the executor had been a party to the appeal which was allowed, as a co-respondent, it was argued that the order of costs was ambiguous unless corrected because it gave the impression that both the executor and the estate had to bear costs. The learned judge clarified the costs order.

In my view, an ambiguous judgment or order must be construed as one that is unclear and capable of various interpretations. This may usually come about as a result of the language used by the court or judge. The ambiguity will therefore be attributable to the court or judge in how it or he has expressed himself or herself in the language used. In such a case it has been held that relief should be granted where, from the language used, the ambiguity resulting therefrom has the effect that the true intention of the court or judge is not clear; see First National Bank of South Africa Ltd v Surgens 1993 (1) SA 245 (W)…,.

A patent error or omission, as the expression implies, is one which is clearly obvious to anyone reading the judgment or order. It does not appear to me that the expression should present difficulties of interpretation.

Examples of patent errors may relate, inter alia, to clerical errors with regard to figures, dates, or spellings. For good measure, a court may have ordered that an order be complied with by a certain date, but, when the judgment is typed and signed, it gives a date which had already passed through clerical error or an impossible date like 31 June yet the month of June ends on the 30th.

A court or judge may, for example, in making an order requiring a party to do a certain act or refrain from doing so mistakenly omit to name the party who should so comply, in circumstances where there are several parties in the judgment. Such an omission can be said to be patent, and, in my view, can properly be corrected and the judgment or order varied to make it explicit.

I should mention that I have read the views expressed by the celebrated authors HERBASTEIN and Van WINSEN in The Civil Practice of the The Courts of South Africa, Vol 1, 5th…, where they rely on the judgment, Isaacs v Williams 1983 (2) SA 723, on the interpretation which has been given to Rule 42(1)(b) of the South African Uniforms Rules of Court which reads the same as Rule 449(1)(b).

The authors state that “an order that has been correctly made but incorrectly typed cannot be corrected or amended in terms of this Rule, although a court has the inherent competence to correct the order so that it corresponds with the one made by the court.”

A typing error, in my view, is an error which should be covered by Rule 449(1)(b) because, if the court has made an order and it is say handwritten or verbal and it is recorded, an error in typing becomes patent by comparison between the actual handwritten or recorded order and the typed error. I do not see why the Rule would not cover such a situation.

Even if I am wrong in my reasoning, I would think then that Rule 449(1)(c), which allows for a variation, rescission or correction of a judgment or order on the basis of a mistake common to the parties, would cover the situation.

The distinction is too fine to call because what, in essence, is the judgment or order of the court would be the untyped judgment or order. The act of typing is merely there to reduce the judgment or order to a typed version, and, if the typed version does not reflect the un-typed script, then, in my view, it is patently erroneous to the extent of the mis-typed error.

I therefore respectfully disagree with the said authors for the reasons I have set out. In disagreeing with them, I do so in the hope that I did not misunderstand or misconstrue what they intended to convey.

Analysis of the Application

Having set out the law, and expressed the difficulties I have encountered in comprehending the applicant's founding affidavit, I proceed to analyze, as best I can, the application in casu in the understanding that the applicant must make out a case for relief under Rule 449(1)(b) of the rules of this court.

He must point out to the ambiguity, patent error, or omission which he alleges that the court made in its judgment in case no. HC6970/16. Once he has done this, he must satisfy me that the ambiguity or patent error or omission is such that I should be persuaded to exercise my discretion to exercise to set aside the judgment as prayed for by the applicant in his draft order.

The discretion which I am empowered to exercise, as with any judicial discretion, must, of course, be exercised judiciously which connotes that the discretion must be based on what is fair in the circumstances of the case whilst applying rules and principles of law.

By giving the court or judge a discretion to exercise the powers given in Rule 449, the applicant must understand, as a corollary, that he has no right or entitlement to demand the relief as of right.

I proceed to briefly outline the material facts arising or discernible from the judgment of this court prepared by my sister CHIGUMBA J in case no. HC6970/16 (ref HH660-16) which judgment the applicant seeks to impugn in this application.

On 1 September 2016, Case No. HC6970/16, in which the applicant therein was the applicant, was listed on the unopposed roll following several postponements by other judges who raised various queries. CHIGUMBA J, in her judgment HH660-16, which the applicant has annexed to his present application dismissed that application on the basis that:

“(a) There is no cause of action thereof and the relief sought is incompetent.

(b) The papers are defective in that they do not comply with order 32 of the rules of this court.”

The applicant, as evident from the judgment, wrote several letters complaining about the dismissal of his application and requesting, if not demanding, for reasons for the order. I have gone through the actual court record in case no HC6970/16 because, in this application, the applicant has just bundled together annexures in the form of documents whose relevance and purport is not clear to me.

I should, at this stage, indicate that the present application was opposed by the first respondent which filed its opposing affidavit on 17 November 2016.

In paragraph 3 of the opposing affidavit, the deponent to the second respondent's affidavit states that he has “read and understood the applicant's founding affidavit…,.” I do not purport to deny his assertion that he has understood it save to state that I unfortunately have not understood it especially reading it in the context of an application purportedly being made under Rule 449 of the High Court Rules.

The contents of the founding affidavit are convoluted, twisted, and difficult to follow.

The applicant attacks the learned CHIGUMBA J as being careless, abusing authority, and going on a frolic of her own in how she dealt with the application HC6970/16. He then speaks about distress suffered by the second respondent which compels her to beam. He speaks of politics creating difficulties in his love affair with the second respondent, more particularly, that ZANU (PF) is blocking him from marrying the second respondent.

In paragraphs 14 and 15 of his founding affidavit, the applicant states as follows:

“14. The (i) beaming which is the act complained of; and (ii) the failure or omission to clarify about whether or not there is political meddling blocking the love affair going right to marriage; and (iii) the failure or omission to clarify or confirm whether or not I can marry her by the second respondent are the acts of carelessness or negligence which judge Chigumba fails to come alive to. See paragraph 37 of the applicant's founding affidavit on page 61. The civil wrong is negligence or carelessness.

15. The 2nd respondent was careless or negligent, in the failure to clarify about the acts or omissions that are complained of about which were specified or itemized in paragraph 37. The negligence or carelessness or failure or omission to clarify by the second respondent as itemized in paragraph 37 of the applicant's founding affidavit in case no: HC6970/16 is the civil wrong or delict or tort or common law breach of the duty of care complained of.”

From the above paragraphs, I got the impression that the applicant was arguing that the learned judge failed to understand or appreciate the cause of action in case no. HC6970/16.

The applicant then attempts to extrapolate the cause of action which the learned judge failed to appreciate or discern.

If I am correct in so holding, then, the applicant is ill-advised to seek recourse in terms of Rule 449(1)(b). Rule 449(1)(b) is not intended to circumvent the process of appeal.

A person who is dissatisfied with the judgment of this court, as would appear to be apparent in this application, if one has regard to the applicant's quoted and other averments, should have the judgment tested by a higher court, on appeal, rather than seeking to have the functus officio court or judge review its or his or her judgment and setting it aside as prayed for by the applicant.

The applicant's thought pattern has left me wondering whether he is compos mentis. I have already indicated that his documents are convulted. This equally applies to his thought pattern. For example, in paragraph 24 of his founding affidavit, which he has typed in bold, he states:

“24. As I write this applicant's founding affidavit: next door neighbours, at 7223A, 25th Street Western Triangle, High Field are emitting alternately both chemical and herbal very pungent smokeless smells. Which means it is just, I am having to deal with a probable political malevolent confederacy of a behemoth nature. And the second respondent is booming/beaming.”

Apart from the above deposition not having any relationship with the alleged ambiguity or errors or omissions in CHIGUMBA J's judgment, one cannot make out the content of the same. It is for this reason that I have found myself questioning the mental composure of the applicant.

I will, among other further meaningless paragraphs, quote paragraph 29 in which the applicant avers:

“29. Possibly, the Judge is complicity. Isn't she? In the postulated most-likely scheme of ZANU (PF) of wanting me to die of AIDS than marry as a targeted person by my political most inveterate adversary, Mr Mugabe, the president of Zimbabwe. What motivated the dismissal. All it does is to seem to confirm my allegations. So where have I lied against ZANU (PF). What motivates the Judge? Is she really incompetent?”

I note that CHIGUMBA J described averments made by the applicant, in his founding affidavit in HC6970/16, inter alia, as jumbled, garbled, and insensible and that no useful purpose could be served by repeating them.

I find myself, after painstakingly trying to make head or tail of the applicant's averments, having to say that the pattern observed by CHIGUMBA J has been repeated.

Although the first respondent has filed opposing papers on the merits, I cannot fathom why the respondent has been made a party to this application. No relief is sought against the first respondent and it is mind boggling why the first respondent would be cited as a party in an application based on Rule 449 of the High Court Rules.

To add salt to injury, the applicant, in his draft order, prays for the setting aside of the judgment in HC6970/16 with costs against the first respondent.

Whilst Rule 449(2) enjoins the court or judge to satisfy it or himself that all parties whose interests may be affected by an exercise of the powers set out in the Rule are made aware of any application made under Rule 449(1), it is not apparent as to how the first respondent is an affected party whether explicitly or implicitly.

The Judicial Service Commission does not supervise the content of a judge's judgment nor does it superintend or influence judgments. It was also not a party to case no. HC6970/16. There is also no reason advanced by the applicant to support or justify a costs order against the first respondent.

I do agree, though, with the first respondent when it states as follows in paragraph 16 of the opposing affidavit:

“16. The applicant has engaged in paranoid delusions throughout his Founding Affidavit, initially accusing everyone, from the President, the Judges of the High Court, political parties, alleged members of the Central Intelligence Organisation, and even the second respondent, whom the applicant alleges to love, of having a sinister plot against him simply because a judgment was entered against him.”

In particular, the applicant has made un-mitigated and virulent attacks on the judge of this court, CHIGUMBA J, without substantiation. He, among other expletives and profanities, accuses the judge of corruption, carelessness, and negligence in an open demonstration of contempt of the judge and court's authority simply because his unopposed application was dismissed for want of merit.

Whilst it is the right of every person to petition the courts, with the courts having a corresponding duty to adjudicate on all matters which come before them, the right does not include the right to abuse the courts and judicial officers.

This application is not only devoid of merit but lacks bona fides. It was filed by a delusional applicant who simply considered that the court, or judge, was wrong to dismiss his application. He then went into attack mode and mounted a sustained attack on the judge and anyone whom he thought, in his delusional state, to be against him.

Courts have a duty to guard the abuse of the court process, and, where there is unmitigated abuse, as in this case, it is only reasonable, expected, and indeed proper, for the court to shut its doors to the abuser and/or place such abuser on terms with regards how he may be allowed to exercise his rights of access to the courts.

There is nothing ambiguous in the judgment delivered by CHIGUMBA J by any stretch of imagination. There is no error or omission discernible - let alone proven by the applicant. The only error is the applicant's perception, which is ill conceived, that he should have been granted the order which he sought. He now seeks to argue why the judge should be held to have been in error by making all sorts of baseless, unintelligible arguments and accusations which clearly fall outside the scope of Rule 449.

I have already indicated that, if the applicant had been properly advised, he should have noted an appeal.

Before rounding off my judgment, I need to comment on a point in limine taken by the first respondent in paragraph 9 of the opposing affidavit, that the applicant adopted a wrong procedure in filing a chamber application for rescission of judgment instead of a court application.

The first respondent argues that because Rule 449(2) requires that interested parties be served, an application under Rule 449 should be brought as an ordinary court application.

I do not agree.

The first respondent should seek guidance from not only Rule 226(2) but should also have regard to Rule 241 and Rule 242.

It is not a correct statement of the law to hold that where a chamber application to a judge is to be served on other interested parties, such application should be brought as a court application or becomes a court application. The correct statement of the law, as I understand it, is that all chamber applications, unless excepted in terms of the exceptions in Rule 242, should be served on all interested parties. This is clear from a reading of Rule 242(1) of the Court Rules.

Thus, reverting to Rule 449, the applicant, or a party, seeking to utilize the Rule for relief can file a chamber application to a judge or a court application. The fact that the party has to notify interested parties does not work to convert the chamber application to a court application. It is on this basis that I have dealt with this chamber application, albeit it being opposed.

I also note that in terms of Rule 229C, the adoption of an incorrect procedure between a court and chamber application does not ground dismissal of the application.

I thus refused the relief of dismissal which the first respondent had prayed for in paragraph 11 of its opposing affidavit.

To conclude my judgment, it is my considered view that this application, for reasons I have pointed out, lacks merit and bona fides. It is, as already alluded to, a clear abuse of the court process.

The matter cannot just end with its dismissal because there is no gainsaying that the applicant will relent his abuse of the court processes. He is the kind of person who is so litigious over frivolous and baseless issues that a sanction is necessary as proposed by the first respondent to stop him from abusing the court process; see Munonyara v CBZ Bank Ltd & Ors HH91-15.

The first respondent has cited the judgment of this court in City of Harare v Tendai Susan Masamba HH330-16 to the effect that courts will shut their doors, justifiably, to curb abuse of their processes; see also Mhiri v Mapedzamombe 1999 (1) ZLR 561.

I have also noted from the judgments of MAKONI J involving the applicant in Ignatius Masamba v Director of Zimsec HH701-16 and Ignatius Masamba v ZTEDC HH699-16 that the learned judge noted in both cases that the applicant was given to dwelling on irrelevancies which were incomprehensible to a great extent. In both cases, which the learned judge dismissed, the applicant was debarred from issuing any process out of this court without first seeking the leave of the court. The two judgments were delivered on 9 November 2016.

The application before me was filed on 7 November 2016.

The learned judge's order did not affect process already filed before the court. This notwithstanding, I consider that it is proper for me to take into account the two matters as clear evidence that it is within the applicant's disposition to institute vexatious and frivolous proceedings and to abuse the process of court. There is need to protect other litigants from abuse as well.

In my judgment, the application in this case bordered on contempt of the judge and the courts.

It is clear that there was no basis for a Rule 449 let alone Rule 449(1)(b) invocation which was apparent or proven. CHIGUMBA J's judgement is clear as crystal. There is nothing to correct or clarify. That the applicant disagreed with the judgment is a different matter which is not remedied by Rule 449. The judgment however clearly shows that the applicant's claim was not sound at law.

For abusing the judge and court as well as for unnecessarily citing the Judicial Services Commission in circumstances where the reasons thereof are not clear other than to bring it to the Commission's attention how the applicant had little regard for the judge, a punitive costs order as prayed for by the first respondent will be justifiable.

I also propose to issue a decree of perpetual silence against the applicant.

Such an order is drastic in its nature and effects as, in essence, I have to order the applicant to abandon this action causa, that is, the one dismissed by CHIGUMBA J in case no. HC6970/16. It is akin to an order for permanent stay of proceedings; compare Sibanda v Attorney General & Anor SC44-07. The case is frivolous and vexatious and without legal basis.

See Ashman (Private) Limited v Harare Car Breakers Sales & Repairs (Pvt) Ltd & Bobby Maparanyanga HH26-04.

Admittedly, this court plays a central role in marriage dissolutions and consequential relief. The court cannot, however, be expected to nor is it empowered to set conditions under which a man who wishes to marry should pay lobola.

For the avoidance of doubt, in the application dismissed by CHIGUMBA J, in HC6970/16, the applicant had sought the following relief as set out in his draft order:

“IT IS ORDERED THAT:

1. The applicant be and is hereby granted his wish to be allowed to pay lobola at his own convenience on a date to pay that he will request from the in laws - only if the respondent is a virgin.

2. The respondent is ordered to stop her part in the beaming.

3. With no order as to costs.”

The applicant has no right of action under any cognizable law in this jurisdiction and it is therefore justiciable to order him to abandon the action by issuing a decree of perpetual silence.

Disposition

In the result, I make the following order;

1. The chamber application be and it is hereby dismissed.

2. A decree of perpetual silence is hereby granted against the applicant with regards any claim which the applicant may make seeking an order of court to permit him to marry the second applicant and any consequential or alternative relief.

3. The applicant shall pay the first respondent's costs on the legal practitioner and client scale.

HH390-18 : MIDLANDS STATE UNIVERSITY vs ALOIS MATONGO
Ruled By: MUZOFA J

The applicant seeks an order for perpetual silence against the respondent.

The order sought is, in the alternative, as follows:-

“1. The respondent be and is hereby ordered to maintain perpetual silence against the applicant, that is to say, the respondent be and is hereby barred and interdicted from instituting any litigation, claim, application, action against the applicant.

2. An order that respondent pays applicant's legal costs on an attorney and client scale; or that

3. The respondent be and is hereby ordered not to commence any litigation, claim, application, action against the respondent without first obtaining leave of this Honourable Court (which this Honourable Court, depending on the facts, will either decline to grant, or will grant subject to precedent (sic) terms and conditions which this Honourable Court, may, in its discretion, stipulate).

4. An order that the respondent pays applicant's legal costs on an attorney and client scale.”

The respondent was employed by the applicant as the director of the Graduate School of Business Leadership at the Midlands State University. Following allegations of misconduct against the respondent he was suspended, charged, and, after a disciplinary hearing, he was dismissed. An internal appeal was unsuccessful.

According to the applicant, after the dismissal of his internal appeal, in 2011, there was no peace for the applicant. Between 2010 and 2017 the respondent filed a total of thirteen (13) applications, actions, and appeals before the Labour Court and the High Court. The applicant stated that although in most cases the respondent was unsuccessful and costs granted against him, it did not pursue the issue on costs as it was aware that the respondent had no means.

The application is opposed.

The respondent does not deny filing the applications or claims. He said they were all completed. Only one matter is still pending between the parties. His main contention is that in terms of section 86 of the Constitution of Zimbabwe he has a right to access justice and the courts of law for redress. Such an application is a negation of his constitutional right. In addition, it was submitted that this court cannot grant an order for perpetual silence regulating processes of other courts. It can only issue an order that relates to the abuse of its own process.

At the hearing of the matter, the applicant sought to amend its order....,.

The notice to amend the draft order was filed on 6 March 2018 to read:

“1. The respondent be and is hereby ordered to maintain perpetual silence against the applicant, and is hereby barred and interdicted from instituting any litigation, claim, application, action, against the applicant, in any court or legal fear, in respect of the respondent's termination of employment, reinstatement of his appeal that was dismissed by the Labour Court, or purported claim of terminal benefits.

2. An order that respondent pays applicant's legal costs on an attorney and client scale.

Alternatively;

3. The respondent be and is hereby interdicted and restrained from instituting any action, application, or suit or proceedings in this Honourable Court, in the Labour Court, and in any other court, against the applicant or its employees, or its agents relating to the applicant or its agents, in respect of proceedings which relate directly or indirectly to the respondent's termination of employment, reinstatement of his appeal which was dismissed by the Labour Court, and purported terminal benefits due to the latter from the applicant, without leave of this Honourable Court first being applied for and obtained.

4. The respondent be and is hereby interdicted and restrained from setting down any matter already filed or commenced with this Honourable Court, the Labour Court, or any other Court subordinate to this Honourable Court, without leave of this Honourable Court first being applied for and obtained.

5. The Registrar of this Honourable Court, and the Registrar of the Labour Court, and the Registrar of any other Court subordinate to this Honourable Court shall not issue any process commencing any action or any application or set down any matter already filed or commenced by, on behalf of, or at the behest of, Mr Alois Matongo in connection with the termination of his employment, and the purported claim of terminal benefits or reinstatement of his appeal that was dismissed by the Labour Court, without the leave of this Honourable Court first being applied for and obtained.

6. Any application for leave to institute proceedings or set down any matter shall be made on notice to the applicant.

7. The respondent is to pay the costs of this application on the legal practitioner and client scale.”...,.

I now deal with the merits of the case.

In my view, two issues fall for determination;

(a) Firstly, whether the respondent has abused the court's process to warrant the order sought; and

(b) Secondly, whether the High Court can issue an order regulating process in other courts.

I had opportunity to peruse the judgments and orders between the parties. The following is evident;

1. Alois Matongo v Midlands State University LC/MD/18/11 (Labour Court, Gweru); an appeal against his dismissal. The appeal was dismissed. No evidence that an appeal against this decision was filed. The respondent was not legally represented. Each party to bear its costs.

2. Alois Matongo v Midlands State University HH1744/13; respondent issued summons action in this court claiming payment of a total of US$120,643=28 for salaries, cash in lieu of leave, cash in lieu of contract leave and cash in lieu of sabbatical leave. The matter was dismissed for want of jurisdiction with costs. The applicant was legally represented.

3. Alois Matongo v Midlands State University LC/MD76/13 (Gweru Labour Court); a claim for terminal benefits claim dismissed with costs. The respondent was legally represented.

4. Alois Matongo v Midlands State University (Arbitration award) award dated 15 September 2014; claim for terminal benefits. Claim dismissed based on prescription. The applicant was not legally represented.

5. Midlands State University v Alois Matongo LC/MS/APP/71/14 [LC/MS/ORD 54/15] (Chamber application for dismissal). Application granted. Appeal dismissed, the respondent in default at filing heads of argument. Costs were granted against the respondent.

6. Midlands State University v Alois Matongo LC/MD/APP/01/15 [LC/MD/ORD 2/15]. Chamber application for dismissal of a chamber application for condonation of late filing of heads of argument. Application granted. Chamber application for condonation dismissed with costs.

7. Alois Matongo v Midlands State University LC/MD/ORD 84/15. Application withdrawn by consent. Costs granted against the applicant. The applicant was legally represented.

8. Alois Matongo v Midlands State University LC/MD/ORD/157/16. Application for rescission of judgment. Matter struck off the roll. Costs were to be in the cause. The applicant was legally represented.

9. Alois Matongo v Midlands State University LC/H/ORD/1049/2017. Application for condonation of late filing of an application for rescission of judgment. Application removed from the roll in terms at Practice Direction 3 of 2013. No order as to costs. The applicant was legally represented.

10. Midlands State University v Alois Matongo LC/H/687/16. Application for an order of perpetual silence. Application dismissed for want of jurisdiction. No order as to costs. The respondent was legally represented.

11. Alois Matongo v Midlands State University LC/H/124/18 (ref LCH/APP/528/217 cited as 520/17. Application for condonation of late noting of an application for rescission of default judgment granted under LC/MS/APP/71/14. The application was struck off the roll with costs. The applicant was legally represented. This is the matter that was pending at the time this case was filed.

It is clear that case number 5 and case number 6 were preceded by an appeal and application by the respondent. The court failed to locate the two files that relate to those proceedings. Of the eleven files, orders, and judgments perused, in nine of the cases the respondent was legally represented. In six of the cases costs were granted against the respondent.

The applicant did not make any effort to recover the costs….,.

A decree of perpetual silence is recognized as a legal remedy in deserving cases. This court has inherent power to prevent abuse of its own process where there is a demonstration that the defendant or the respondent is a serial litigator whose underlying intent is to abuse not only the court's process but his adversary too.

In terms of section 69(3) of the Constitution, every person has the right of access to the courts. This right, though, can only be exercised reasonably and with due regard for the rights and freedoms of other persons in terms of section 86(1) of the Constitution. In essence, it is a balancing act.

In this balancing act, courts have pointed out that this drastic remedy, that muzzles an individual, should be granted in exceptional cases. It is not granted on the asking; see Hudson v Hudson 1927 AD…,.

The full Bench in Brown v Simon 1905 TS 311 analyzed various leading cases in such applications; the court concluded that the following considerations should be made;

1. The nature and subject matter of the claim;

2. The likelihood of prejudice to either party if the decree is granted;

3. The balance of convenience as shown by the circumstances of each case.

Bearing in mind the said principles, I shall proceed to determine the case.

The Claim(s)

The respondent filed numerous cases before the Labour Court. He did not deny it. However, he said he did not abuse the court process.

A reading of case law shows that there can be no one size fits all definition of abuse of court process. In jurisdictions where abuse of process is recognized as a remedy, the courts have looked more to the purpose for which the process is used. It is the improper use of process, after its issuance, in order to accomplish a purpose for which the process was not designed. Bone v Bernard 2008 Ark App Lexisti 569. Such abuse of process includes ligation in bad faith meant to harass and vex the respondent.

In casu, the respondent, upon his dismissal, he noted an appeal with the Labour Court. The appeal was dismissed. He did not appeal against this dismissal to the Supreme Court. It may be safely inferred that he came to terms with his dismissal. Thereafter, he filed an application to the Labour Court for his terminal benefits and/or outstanding salaries. His efforts to get his dues birthed the numerous applications and an appeal to the Labour Court and this court. It is evident, from the court records, that when his claim for benefits was dismissed by the arbitrator, he noted an appeal to the Labour Court. The appeal was dismissed for want of filing of heads of argument by the respondent. Thereafter, he mounted several applications for condonation and rescission of judgment all with a view to undo the dismissal of the appeal so that the matter could be heard on the merits. His efforts continued to hit a brick wall.

I must say, the respondent was represented by legal practitioners. This is a clear case where the legal practitioners failed to act timeously in terms of the Labour Court Rules, and, in some instances, a sheer lack of appreciation of the procedure in the Labour Court. It is unfortunate that it is the litigant who bears the brunt of such poor workmanship resulting in numerous applications to correct the anomalies.

In our jurisdiction, I have come across very few cases where the decree of perpetual silence was granted; in Ignatius Masamba v The Secretary, Judicial Service Commission HH283-17; City of Harare v Masamba HH330-16; Vigour B Fuyana v Moyo SC54-06; and Mhini v Mupedzamombe 1999 (1) ZLR 561.

What cuts across the cases is that a plethora of cases are filed stemming from one cause of action. In some cases the actions are not directed to one person only, they involve other persons including judicial officers who are impugned in the process. The respondent's conduct, in asserting his rights, must be such that it clogs the court system with groundless and unending litigation. In those cases, it can be said both the courts and the sued parties were harassed by litigation with no end in sight.

In Mabwe Minerals (Pvt) Ltd and 3 Ors v Peter Valentine and Anor HH793-16 the court dismissed an application for perpetual silence despite the fact that there were thirty (30) cases between the parties. The court noted that the applicant contributed to the confusion that beset the respondents who genuinely believed they had a grounded cause of action.

In casu, one claim is pursued, the cause of the numerous applications in the Labour Court is to reverse the dismissal of the appeal - which process is allowed in terms of the Rules. The respondent was genuine in the pursuit of his claim for terminal benefits. The purpose of the applications was not to abuse the process but to protect his rights.

In the circumstances of this case, I cannot find a deliberate intention to vex the applicant by the respondent nor abuse the court process as a result of the claims filed so far. Apparently, the one matter that the respondent submitted was outstanding before the Labour Court has since been determined.

Prejudice

The likely prejudice to the applicant, in the event the order is granted, is set out on p5 of the founding affidavit. I say this because a case stands or falls on the founding affidavit, on paragraph(s) 13.4 and 13.5 it is alleged;

“13.4 In the process of doing so, the applicant is not pursuing any recourse to vindicate any legitimate rights, but is, instead, harassing the applicant and putting it to unnecessary legal expenses.

13.5 There is no chance of the applicant recovering its expenses through an award of costs, as to applicant's knowledge and belief, the respondent is unemployed, lives in penury and abject poverty, and is a man of no financial means.”

And at 28.1;

“In five (5) matters that the applicant was awarded costs, it did not pursue the recovery of the costs, against the respondent, because to applicant's best knowledge, the respondent is a man of no means. To pursue recovery of costs under such circumstances would, at best, be vindictive, and, at worst, fishing in a dry river bed.”

I do not believe the respondent does not have a legitimate claim.

Nowhere in the founding affidavit does the applicant indicate it paid the terminal benefits and outstanding salaries.

The applicant's main contention is that it is incurring unnecessary legal expenses.

The foregoing extracts, from the founding affidavit, show that the applicant was awarded costs in five (5) cases although my count was six (6) cases. The costs were not recovered through a deliberate decision by the applicant not to recover the costs.

HERBSTEIN and Van WINSEN in The Civil Practice of the High Court Vol. 2, 5th ed…, succinctly set out the purpose of an award of costs as follows:

“…, to indemnify him for the expense to which he has been put through having been unjustly compelled to initiate or defend litigation, as the case may be.”

Even in deciding the scale of costs, courts have granted costs on a higher scale to deter unnecessary litigation; see Wilbert Munonyara v CBZ Bank Ltd and 2 Ors HH91-15, where costs on a legal practitioner and client scale were granted being admonitory costs to signify the court's displeasure at being taken for granted by litigants.

In an application such as this, recovery of costs, in my view, should be a deterrent to the respondent. An applicant should therefore demonstrate that it has recovered costs - yet the respondent continues to file litigation.

In the alternative, where an attempt to recover costs is unsuccessful, and the respondent is a self-actor with no means, there must be proof of a nulla bona return. The purpose of that return is to show that, as the applicant continues to incur legal costs, they cannot be recovered, and the respondent is a self actor with no legal costs, as was in Mhini v Mupedzamombe 1999 (1) ZLR 561.

In casu, there was no attempt to mitigate the prejudice by the applicant as per its admission. Its reasons for doing so are based on conjecture with no evidence, yet the respondent had legal representation in some of the cases.

On the other hand, the order sought, to silence the respondent, alternatively, to allow him to approach the courts with leave impinges on one of the respondent's fundamental rights - to access the court.

In the event that the decree of perpetual silence is granted, the respondent is likely to be prejudiced. The balance of convenience favours allowing the respondent to pursue his claim.

In view of the foregoing, this is not a proper matter for an order of perpetual silence.

I leave open the second issue whether this court can grant such a decree regulating process in other courts.

Costs

Costs are always in the discretion of the court and generally follow the event. I see no reason to depart from this approach.

Accordingly, the following order is made;

1. The application be and is hereby dismissed with costs.

CC09-20 : TUNGAMIRAI NYENGERA vs THE STATE
Ruled By: MALABA CJ

This is a chamber application for leave to appeal to the Constitutional Court (“the Court”) against a decision of the Supreme Court (“the court a quo”) in terms of Rule 32(2) of the Constitutional Court Rules S.I.61 of 2016 (“the Rules”), as read with section 167(5)(b) of the Constitution of Zimbabwe Amendment (No.20) Act 2013 (“the Constitution”).

The Court holds that it is not in the interests of justice that the applicant be granted leave to appeal against the decision of the court a quo because no constitutional matter arose or was raised in the decision of the court a quo. Consequently, the application has no merit and cannot succeed. The reasons for the decision are set out below.

FACTUAL BACKGROUND

In February 2015 the applicant was charged in the Magistrates' Court at Bulawayo with fraud as defined in section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (“the Criminal Law Code”). The background to the charge is that the applicant was the legal practitioner representing one Lungisani Sibanda (“Lungisani”), who was serving a seven-year prison sentence at Khami Maximum Prison for the offence of car theft. After a failed attempt was made to obtain liberty for Lungisani Sibanda, it was alleged that the applicant obtained a fake warrant of liberation misrepresenting that Lungisani had been granted bail pending appeal. It was alleged that the fake warrant of liberation was given to Lungisani's sister Lilian. She was the one to present the fake warrant of liberation of her brother from prison to the relevant authorities. In the statement she gave to the police, Lilian implicated the applicant.

After a full trial, the applicant was convicted of the offence and sentenced to forty-eight months' imprisonment, of which twelve months were suspended for five years on conditions of good behaviour.

Dissatisfied with the decision of the trial court, the applicant noted an appeal against both conviction and sentence to the High Court on the following grounds:

“Ad conviction

1. The learned magistrate in the court a quo erred, at law, in holding that Absolom Hlupo's evidence was admissible as against his co-accused, who, in this case, was the appellant.

2. The learned magistrate erred in holding that the Warrant of Liberation was fake when no evidence was led from the Clerk of Criminal Court's office in the Provincial Magistrates Court, that no record existed thereat where such bail had been granted warranting the Clerk of Criminal Court's stamp to be used.

3. The learned magistrate erred, at law, in holding that the call history regarding the cellphone was admissible as evidence against the appellant without considering, at all, the veracity, authenticity, and reliability of such evidence. A fortiori, the learned magistrate erred at law in holding that such evidence was admissible when it also clearly infringed on the appellant's constitutional rights and was obtained using a secondary legislation that is not supreme to the Constitution of Zimbabwe. Such evidence, in any event, had not been tendered in terms of the law.

4. The learned magistrate erred in accepting and considering Lilian Tapera's evidence admissible when she testified without being cautioned in terms of the law.

5. The learned magistrate further erred in seeking to have Lilian Tapera's evidence corroborated when, in the first place, it had been taken outside the purview of the law, had clear contradictions, prevarications (sic) and could not be relied upon. Despite this, the learned magistrate held that she had acquitted herself very well totally ignoring the aforesaid.

6. The learned magistrate erred in holding that Lilian Tapera's evidence was adequately corroborated by Joyce Sibanda and Richard Bhebhe's evidence totally ignoring, in the process, the glaring inconsistencies in her evidence and also between her evidence and that of these two witnesses.

7. The learned magistrate erred in holding that the envelope which Lilian Tapera saw at the appellant's office was one and the same envelope which was then delivered at Khami Prison and from which a Warrant of Liberation was discovered, and, on 23 December 2014, not on 24 December 2014 as appeared in the charge.

8. The learned magistrate further erred in holding that appellant's visit to Lilian Tapera's house was the reason why the said witness then gave a different statement at CID Frauds totally ignoring many factors that proved that such a finding was inconsistent with Lilian's own behaviour, her own evidence, and that of her mother, Joyce Sibanda, and the appellant.

9. The learned magistrate erred, at law, in totally disregarding the appellant's evidence which was most probable and accusing him of taking his legal role to the witness stand, and, in the process, ignoring the fact that he stood firmly and gave his evidence clearly.

Ad sentence

The learned magistrate's sentence was excessive and harsh to the extent that it induced a sense of shock in light of:

(a) The grounds of appeal highlighted above.

(b) Its inconsistency with the factors highlighted in mitigation i.e. the appellant's personal circumstances and that no prejudice was suffered.

(c) The fact that it basically amounted to paying lip service to the mitigating factors.”

The High Court found no merit in the appeal against conviction. It was dismissed.

The appeal against sentence succeeded.

The High Court held that the sentence was unduly harsh and excessive. It noted that the applicant was a young lawyer who was at the inception of his career. It was of the view that, in passing sentence, his immaturity as a lawyer had to be considered. As a result, the applicant's sentence was reduced from forty-eight months to thirty-six months' imprisonment, twelve months of which were suspended for five years on condition that the applicant did not within that period commit an offence involving dishonesty for which upon conviction he was sentenced to imprisonment without the option of a fine.

Still aggrieved, the applicant noted an appeal against the confirmation of his conviction to the court a quo.

In his grounds of appeal, he argued that the High Court erred in accepting the evidence of the two witnesses who testified that the Warrant of Liberation was fake, as such evidence was not in conformity with the law regulating the authenticity of public documents. He further argued that the High Court erred in failing to regard Lilian Tapera as an accomplice witness. The argument was also made that the High Court erred in dismissing the applicant's challenge against the admissibility of the call history of his cellphone. Lastly, it was argued that the High Court erred by failing to rule against the admissibility of the confession by the appellant's co-accused in convicting the applicant.

The court a quo was of the view that the warrant of liberation was fake beyond a reasonable doubt and that the evidence adduced put this fact beyond any doubt. As regards the issue whether Lilian Tapera was an accomplice witness or not, the court a quo held that the High Court was correct in finding that she was not an accomplice, as there was no evidence that she participated in the generation and presentation of the fake warrant of liberation. Further, the court a quo found that the call history from the applicant's cell phone could be used as evidence against him because his objections to its use in the trial court were not substantiated, and that, in any event, he had consented to it being adduced as evidence.

It was the court a quo's finding that, in terms of section 259 of the Criminal Procedure and Evidence Act [Chapter 9:07] (the “CPEA”), the confession of one Hlupo could not be used against the applicant. As such, it was held that the trial court erred in admitting the confession into evidence against the applicant. However, the court a quo found that, even excluding the confession, there was sufficient evidence against the applicant to prove beyond a reasonable doubt that he had committed fraud in contravention of section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

The appeal was accordingly dismissed.

On 19 February 2019 the applicant filed the present application for leave to appeal in terms of Rule 32(2) of the Rules, as read with section 167(5)(b) of the Constitution. He alleged that his right to equal protection and benefit of the law in terms of section 56(1) of the Constitution was violated by the court a quo when it upheld the authenticity of the call records.

The applicant further alleged that his right to a fair trial, as enshrined in section 69(1) of the Constitution, was violated by the court a quo. The allegation was that the applicant's right to challenge evidence was violated because he was not given the opportunity to “cross-examine the person who informed Lungile Moyo that the warrant was fake.”

The applicant also averred that his right under section 70(1)(k) of the Constitution, not to be convicted of an act that was not an offence when it took place, was violated. He alleged that if investigations were still to be completed, the delivery of the warrant of liberation was not an offence at the time of the trial.

It was also the applicant's allegation that his right to be presumed innocent, in terms of section 70(1)(a) of the Constitution, was infringed upon by the court a quo. The applicant challenged the finding by the court a quo to the effect that “that the provincial court had issued a warrant was not only remote but fanciful.”

The application was opposed by the respondent.

Its argument was that the findings of the court a quo were correct because the evidence proved beyond a reasonable doubt that the warrant of liberation was fake. It was further denied that there were any infringements of the applicant's constitutional rights. Therefore, no constitutional issues arose for determination. It was prayed that the application be dismissed.

APPLICATION OF THE LAW TO THE FACTS

In terms of section 167(5)(b) of the Constitution, the Constitutional Court Rules must allow a person, when it is in the interests of justice and with or without leave of the Constitutional Court, to appeal directly to the Constitutional Court from any other court. Rule 32 of the Rules gives effect to section 167(5)(b) of the Constitution. It provides, in relevant part, as follows:

“32. Leave to appeal

(1)…,.

(2) A litigant who is aggrieved by the decision of a subordinate court, on a constitutional matter only, and wishes to appeal against it to the Court, shall, within fifteen days of the decision, file with the Registrar an application for leave to appeal and shall serve a copy of the application on the other parties to the case in question, citing them as respondents.”…,.

Section 167(1)(b) of the Constitution makes it clear that the jurisdiction of the Constitutional Court is limited to deciding only constitutional matters and issues connected with decisions on constitutional matters. It is the highest court in all constitutional matters.

The case of Lytton Investments (Pvt) Ltd v Standard Chartered Bank Zimbabwe Ltd and Anor CC11-18 is instructive with regards to the specialized jurisdiction of the Constitutional Court. At p9 of the cyclostyled judgment the Court said:

“The Court is a specialised institution, specifically constituted as a Constitutional Court, with the narrow jurisdiction of hearing and determining constitutional matters only. It is the supreme guardian of the Constitution and uses the text of the Constitution as its yardstick to assure its true narrative force. It uses constitutional review predominantly, albeit not exclusively, in the exercise of its jurisdiction.”

In Muza v Saruchera and Ors CC05-19 the Court noted that the purpose of the right of appeal granted to a person under Rule 32(2) of the Constitutional Court Rules, the procedure of an application for leave to appeal provided therein, and the contents of the application required under Rule 32(3)(c) of the Rules, are premised on the existence of a decision by a subordinate court on a constitutional matter.

The purpose of the Constitutional Court Rules is to ensure proper exercise of jurisdiction by the Constitutional Court.

The matter that gives rise to the need for the Constitutional Court to exercise its jurisdiction must be a constitutional matter decided by the subordinate court.

In Sadziwani v Natpak and Ors CC15-19 the Court emphasised the need for protecting its jurisdiction and process from abuse. It stated the following…,:

“Jurisdiction is the power or competence of a court to adjudicate on, determine and dispose of a matter.

In this regard, the Court is a creature of the Constitution. The principle of constitutional supremacy, as enshrined in section 2 of the Constitution, guarantees that the Court only exercises jurisdiction over matters which are specifically set out in terms of section 167, as read with section 332, of the Constitution.

The principle also ensures that the jurisdiction of the Court, as the highest court on constitutional matters and connected issues, cannot be ousted by legislation.

The Court's power to adjudicate on constitutional matters ought to be construed as a means by which life can be given to the objectives set out in section 3 of the Constitution. The Court, as the highest and most authoritative tribunal in constitutional matters, is tasked with the responsibility of safeguarding the values and objectives of the Constitution. It is charged with the duty of ensuring that these objectives are realised and given effect to. Thus, it is imperative that the Court is not unduly saddled with cases that have no bearing on the interpretation, enforcement or protection of the Constitution.

It is incumbent upon the Court to guard its jurisdiction jealously and eliminate the abuse of its powers. The integrity of the Court is of utmost importance and it ought to be protected.

The deliberately narrow jurisdiction of the Court is meant to shield it from abuse and ensure that it only adjudicates upon that which it is constitutionally mandated to adjudicate on.”

The object of the exercise of jurisdiction by the Court is always the protection, promotion and enforcement of the supremacy of the Constitution. Where there is no decision by a subordinate court to justify the allegation of actual or threatened violation of a constitutional provision, the Constitutional Court will have no cause for the exercise of its jurisdiction.

Section 332 of the Constitution defines a constitutional matter as “a matter in which there is an issue involving the interpretation, protection or enforcement of this Constitution.”

It is the applicant's case that the decision of the court a quo violated his right to equal protection and benefit of the law, enshrined in section 56(1) of the Constitution, when it upheld the authenticity of the call records and upheld the reliance of the trial court upon them.

With regards to the admissibility of the call history as evidence against the applicant, the court a quo held the following at paragraphs 46-49 of the cyclostyled judgment in Tungamirai Nyengera v The State SC67-18:

“The record indicates that the issue that was before the court a quo is whether or not the call histories were admissible.

The appellant contended that they were not as the evidence 'clearly infringed on the appellant's constitutional rights, and were obtained using secondary legislation that is not supreme to the Constitution of Zimbabwe.'

Clearly, there is no merit in this ground.

The right to privacy given in the Constitution is derogable and the law under which the call history was ordered by the Magistrates' Court is an example of one such derogation.

The rules governing the admissibility of documentary evidence in criminal trials are aimed at ensuring a fair trial through the elimination of any potential prejudice to an accused person, who is clearly the weaker of the two adversaries involved in a criminal trial.

All these rules, however, yield and fall by the wayside when an accused person consents to the production of documents tendered by the State.

Before the trial court, the appellant consented to the production of the call histories without any demur. There was therefore no issue before that court regarding the admissibility of the call histories.”

The court a quo dismissed the applicant's argument regarding the call history because the applicant had consented to the production of the records at his trial. The finding by the court a quo was a finding of fact, which was made after an assessment of the laws of evidence.

Where an accused person consents to the adduction of incriminating evidence, he cannot turn around and challenge a conviction which was secured based on that evidence.

In coming to this conclusion, the court a quo did not decide a constitutional matter because there was no need to interpret, enforce or protect the Constitution in order to come to the conclusion that the call history was admissible as evidence against the applicant. As such, the applicant's argument in this regard ought to fail.

The applicant also argued that his right to a fair trial, as enshrined in section 69(1) of the Constitution, was violated.

In this regard, he asserted that his right to challenge evidence was impinged upon because the evidence of one Lungile Moyo was at odds with section 253 of the Criminal Procedure and Evidence Act, in that he was not given the opportunity to “cross-examine the person who informed Lungile Moyo that the warrant was fake.”

The position of the law is that a purely factual matter does not amount to a constitutional issue.

In S v Boesak 2001 (1) SA 912 (CC), LANGA DP put this position beyond doubt when he stated the following…,:

“A challenge to a decision of the SCA, on the basis only that it is wrong on the facts, is not a constitutional matter.

In the context of section 167(3) of the Constitution the question whether evidence is sufficient to justify a finding of guilt beyond reasonable doubt cannot in itself be a constitutional matter. Otherwise, all criminal cases would be constitutional matters, and the distinction drawn in the Constitution between the jurisdiction of this Court and that of the SCA would be illusory.

There is a need for finality in criminal matters.

The structure of the Constitution suggests clearly that finality should be achieved by the SCA unless a constitutional matter arises.

Disagreement with the SCA's assessment of the facts is not sufficient to constitute a breach of the right to a fair trial.

An applicant for leave to appeal against the decision of the SCA must necessarily have had an appeal or review as contemplated by section 35(3)(o) of the Constitution. Unless there is some separate constitutional issue raised therefore, no constitutional right is engaged when an appellant merely disputes the findings of fact made by the SCA.”

As a result, the question whether evidence is sufficient to justify a finding of guilt beyond reasonable doubt is not, for the reasons given above, a constitutional matter.

The applicant also averred that his right under section 70(1)(k) of the Constitution, not to be convicted of an act that was not an offence when it took place, was violated.

He alleged that if investigations were still to be completed, the delivery of the warrant of liberation was not an offence at the time of the trial.

It is common cause that the applicant was charged with and convicted of fraud as defined in section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. It is also common cause that the Criminal Law (Codification and Reform) Act was in force at the time the applicant's trial commenced. The allegation that the conduct for which the applicant was convicted was not an offence at the time of his trial was not made in seriousness and must be dismissed.

The applicant further advanced the argument that the finding by the court a quo that the warrant of liberation was fake infringed his right to be presumed innocent until proven guilty, as enshrined in section 70(1)(a) of the Constitution.

This finding by the court a quo is also alleged to be a violation of section 165(1)(a) of the Constitution, which guarantees that justice must be done to all irrespective of status.

The applicant further argued that section 70(1)(a) of the Constitution must be read together with section 18(1) of the Criminal Law (Codification and Reform) Act. Section 18(1) of the Criminal Law (Codification and Reform) Act provides:

“18 Degree and burden of proof in criminal cases

(1) Subject to subsection (2), no person shall be held to be guilty of a crime in terms of this Code or any other enactment unless each essential element of the crime is proved beyond a reasonable doubt.”

As already found, the findings of the court a quo, regarding the authenticity of the warrant of liberation, are within the realm of the law of evidence, particularly the assessment thereof, and do not give rise to a constitutional issue.

A decision as to the sufficiency of evidence that is required to sustain a conviction in a criminal prosecution does not ordinarily involve the interpretation or application of any provision of the Constitution. Neither does it involve the application of a law inconsistent with the Constitution, or have any other connection with the Constitution that would make that decision a constitutional matter.

The Constitution must be involved in some way before such a finding can be said to raise a constitutional issue within the jurisdiction of the Court. The fact that there was no constitutional matter that was raised before and determined by the court a quo cannot be meaningfully disputed. The applicant was merely aggrieved by the non-constitutional findings of the court a quo and this means that the jurisdiction of the Constitutional Court is not triggered in the circumstances.

In De Lacy and Anor v South African Post Office [2011] ZACC 17…, the Constitutional Court of South Africa held as follows regarding an applicant's dissatisfaction with the factual findings of a lower court:

“Then, the essence of their contention was that the Supreme Court of Appeal should have held that indirect intent was sufficient to render an organ of State vicariously liable for the wrongs of its employees and that on the evidence they had established that the Post Office's employees had acted with indirect intent to defraud.

That was the applicants' constitutional focus.

And yet the bulk of its papers were devoted to an exhaustive critique of the factual findings of the Supreme Court of Appeal. Their grievance had all the hallmarks of a mere dis-satisfaction with factual findings.

The Post Office opposed the application. On 9 July 2009, this Court dismissed it for lack of prospects of success.”…,.

See also Chiite and Ors v The Trustees of the Leonard Cheshire Homes Zimbabwe Central Trust CC10-17.

Consequent to the above, the issue relating to the hierarchy of courts, in non-constitutional, matters arises. In this regard, section 169(1) of the Constitution is paramount. It provides as follows:

“169 Jurisdiction of Supreme Court

(1) The Supreme Court is the final court of appeal for Zimbabwe, except in matters over which the Constitutional Court has jurisdiction.”

In Rushesha and Ors v Dera and Ors CC24-17 GWAUNZA JCC…, interpreted this provision in the following manner:

“The import of this provision needs no elaboration. Only where the Supreme Court determines a constitutional issue, may one appeal to this Court for a final determination. Because the Supreme Court in this matter did not determine any constitutional issue, the decision it rendered was final and not appealable.”

Section 26(1) of the Supreme Court Act [Chapter 7:13] reaffirms the above position. It states:

“26 Finality of decisions of Supreme Court

(1) There shall be no appeal from any judgment or order of the Supreme Court.”

In Lytton Investments (Pvt) Ltd v Standard Chartered Bank Zimbabwe Ltd and Anor CC11-18, the Constitutional Court held that the principles that emerge from section 169(1) of the Constitution, as read with section 26 of the Supreme Court Act, are clear. At p22 of the cyclostyled judgment, the Court said:

“A decision of the Supreme Court, on any non-constitutional matter in an appeal, is final and binding on the parties and all courts except the Supreme Court itself. No court has power to alter the decision of the Supreme Court on a non-constitutional matter. Only the Supreme Court can depart from or overrule its previous decision, ruling or opinion on a non-constitutional matter.

The onus is on the applicant to allege and prove that the decision in question is not a decision on the non-constitutional matter.”

There was no constitutional issue raised before and determined by the court a quo. The dismissal of the appeal by the court a quo remains final. It cannot be appealed against. As such, the application has no merit and it ought to be dismissed.

DISPOSITION

The application is dismissed with no order as to costs.

SC54-06 : VIGOUR FUYANA vs NTOMBAZA MOYO
Ruled By: CHIDYAUSIKU CJ

This is a Chamber application for the condonation of the late noting of an appeal. Although the applicant does not specifically aver this, I shall assume that the application is made in terms of Rule 31 of the Supreme Court Rules (“the Rules”).

On 25 July 2005, SANDURA JA, sitting with MALABA JA and NDOU AJA, issued the following order:

“WHEREUPON, after reading documents filed of record and hearing counsel, IT IS ORDERED THAT:

The matter be struck off the roll with costs.”

The record reveals that both parties were present, and the record of SANDURA JA, who presided over the matter, indicates that the matter was struck off the roll because the Notice of Appeal was filed out of time and no application for condonation had been made.

Because of the multiplicity of cases involving the same parties, it is important to understand that the Court was seized with appeal case no. SC236/2000, which was an appeal against judgment no. HB44/2000.

Where an appeal is noted out of time, before the matter can be heard by this Court an application for condonation has to be made, and such condonation granted, before the appeal can be entertained.

A matter that is set down for hearing without condonation being first granted will be struck off the roll, as happened in this case.

On 14 and 18 July 2000 the applicant filed a Chamber application for directions before KAMOCHA J. He handed down judgment dismissing the application on 20 July 2000. The judgment is judgment number HB44/2000, HB44-00.

Over a year after the handing down of the judgment, on 21 August 2001, the applicant filed a Notice of Appeal against the judgment of KAMOCHA J. The headnote of that Notice of Appeal reads as follows:

“Take notice that the applicant hereby appeals against the judgment of the High Court No. HB44/2000, in terms of which the Honourable Judge dismissed the applicant's application for discharge of the provisional order in case number HC5207/99 with costs on the grounds and reasons detailed below.”

Apart from the fact that the above Notice of Appeal does not comply with the Rules, in particular Rule 29(a) and (c), in that it does not give the date when the judgment was delivered nor state whether the appeal is against the whole or part of the judgment, and is therefore invalid, it was filed way out of time.

The applicant was appealing against the judgment of KAMOCHA J (No. HB44/2000) which had been handed down on 20 July 2000 and not any of the other judgments involving the same parties - of which there are several. Thus, the Court was seized with an appeal against judgment No. HB44/2000 and no other matter.

The applicant, in his submissions to the Court, alleges that he filed a Notice of Appeal against this judgment, No. HB44/2000, on 15 August 2000 and that the above Notice of Appeal, of 21 August 2001, was an amendment to the Notice of Appeal filed on 15 August 2000.

The alleged Notice of Appeal, of 15 August 2000, is not on the record.

The Notice of Appeal of 21 August 2001, cited above, is not an amendment but a Notice of Appeal on its own.

However, even if I were to accept that the applicant did file a Notice of Appeal on 15 August 2000, that Notice of Appeal would have been out of time. Judgment HB44/2000 was handed down on 20 July 2000, and, according to my calculations, the dies induciae for noting an appeal expired on 10 August 2000.

Thus, the Notice of Appeal filed on 15 August 2000 was outside the fifteen days prescribed by the Rules of the Supreme Court.

Thus, whichever of the two dates one accepts as the date for the filing of the Notice of Appeal makes no difference. Both dates were outside the dies induciae.

Consequently, the striking off of the matter from the roll admits no doubt.

The applicant contends that the matter should not have been struck off the roll and impugns the integrity of the Court for striking the matter off the roll....,.

Ten months after the appeal was struck off the roll, on 17 May 2006, the applicant filed the present application for condonation of the late noting of an appeal.

The Rules of this Court provide that condonation for the late noting of an appeal can be granted upon the establishment of a good cause.

It is well settled that the essential elements of a good cause are:

(a) A reasonable explanation for the failure to file the Notice of Appeal within the prescribed period;

(b) Some prospect of success on the merits; and

(c) The bona fides of the application.

REASONABLE EXPLANATION FOR THE FAILURE TO NOTE THE APPEAL IN TIME

The applicant's application for condonation, in this case, consists of unwieldy voluminous affidavits, submissions, and attached documents. The voluminous application for condonation does not provide the one thing that is critical to the applicant's case, namely, the explanation for the applicant's failure to file the Notice of Appeal in the time prescribed by the Rules.

Without such an explanation, it is difficult to see how a Judge can grant the applicant the indulgence or condonation sought.

The applicant, in paragraph 7.4 of the founding affidavit, makes the following averment:

“The Appellate Judge did not appreciate the fact that judgment Number HB44/2000 was uplifted on 3 August 2000; that the original Notice of Appeal in SC236/00 was filed on 15 August 2000; that the Notice of Amendment of the grounds of appeal was filed on 3 August 2001; and the fact that the Appeal Number is SC236/00 and not SCA236/01.

The Appellate Judge did not appreciate the fact that the main action matter number, HC4295/98, and its allied application, HC5207/99, were consolidated into one matter and that condensed arguments in both applications were presented on 14 July 2000. Therefore, there was no need to apply for leave to appeal or for condonation to appeal out of time, as there was nothing interlocutory about HC5207/99 and since the CHEDA J (as he then was) Orders and Judgments must not have been at all, as the respondent had recovered her $20,384.”

The applicant suggests the matters between the parties had been consolidated. The record shows no order consolidating the cases.

Cases do not consolidate on the mere say so of the litigant.

This near meaningless averment is the nearest that can be described as an explanation proffered by the applicant for the failure to file the Notice of Appeal on time.

The above averment falls far short of discharging the onus on the applicant to provide a reasonable explanation for his failure to comply with the Rules. In my view, the above averment is no explanation at all. If anything, the suggestion, in paragraph 7.4, is that the dies induciae should run from 3 August 2000 because that is when the applicant became aware of the judgment.

That contention is untenable and unacceptable.

The applicant has not provided an acceptable reason for his failure to comply with the Rules, and, on this basis alone, the application for condonation must fail.

However, even if I were to accept that the applicant filed his alleged Notice of Appeal, which is not on the record, within five days of the dies induciae, and, therefore, should be given some latitude, I would still dismiss this application on the basis that it has no prospects of success on the merits.

PROSPECTS OF SUCCESS ON THE MERITS

As I have already stated, the appeal that was before the Court, and that was struck off the roll, was the appeal against judgment No. HB44/2000. In that judgment, KAMOCHA J dismissed a Chamber application for directions by the applicant.

Judgment No. HB44/2000 is very brief and to the point.

The judgment very ably sets out the facts of this case and the reasoning behind the learned Judge's conclusion. I can do no better than refer to it extensively. It reads, in part, as follows:

“For convenience, the parties in this matter will be referred to as Fuyana and Ntombaza.

On 14 October 1998, Ntombaza obtained a provisional order whose terms, inter alia, barred Fuyana from taking transfer of Stand Number 11747 Nkulumane from one William Ndlovu who had allegedly sold the same property to Ntombaza using Fuyana as his agent. Ntombaza was also granted rights to re-occupy the house as she had been in occupation before the said house had been damaged by one Jericho Maphosa.

Fuyana filed his notice of opposition but did not anticipate the return date.

Exactly a year later, on 14 October 1999, Ntombaza made an ex parte application seeking for (sic) an order converting the papers in the first application to pleadings and the matter (to be) referred to trial. The parties were allowed to file further pleadings within fourteen days of the order if they so desired.

This application to refer the matter to trial was served on the legal practitioners of Fuyana on 8 October 1999.

There seemed to be no opposition from Fuyana's legal practitioners and the application was granted six days after it had been served.

To illustrate the confusion that reigned in Fuyana's camp, a belated attempt to oppose the application was made by Fuyana himself - not through his lawyers.

Ntombaza asserted that Fuyana's legal practitioners had agreed that the matter be referred to trial.

I am inclined to agree with her because if what she asserted was not true Fuyana's legal practitioners would have filed an affidavit denying that they had agreed to the matter being referred to trial with the terms of the provisional order standing.

When the court granted the application it must have been satisfied that the matter was not capable of being resolved on the papers filed of record. It then issued an order which has not been rescinded. The matter has been settled and yet Fuyana still calls upon the court to interfere.

The court had concluded that a robust approach could not be adopted in this particular case to resolve the matter on the papers in the light of the numerous disputes of fact therein. But, Fuyana still lodged this application requesting the court to discharge the provisional order in question. He also wanted Ntombaza, and all persons claiming through her, to be ordered to vacate Stand 11747 Nkulumane within forty-eight hours of service on them of the order, failing which the Deputy Sheriff be ordered to evict them and their possessions.

Fuyana is clearly abusing court process and this court should express its displeasure by ordering him to pay punitive costs.

In the result, the application is dismissed with costs on an attorney/client scale.”

It is difficult to see on what possible basis a Court of Appeal can interfere with the above judgment more so having regard to the grounds of appeal contained in the Notice of Appeal.

The reasoning and the conclusion of the learned Judge, in my view, are flawless and there is no prospect of an Appeal Court differing from the learned Judge. The Notice of Appeal filed by the applicant is no more than a series of senseless assertions that the learned Judge misdirected himself on this fact or on that point of law. The Notice of Appeal raises nothing worth serious comment or consideration.

I would also add that KAMOCHA J was dealing with an application for directions by the applicant.

The heading of the application specifically indicates that the application before the learned Judge was one for directions. An application for directions, as the word implies, is an application seeking directions on how to proceed in the main proceedings, usually the trial. Order 23 and Rule 152 clearly set out the purpose and content of an application for directions.

The application before KAMOCHA J, although headed application for directions, sought to canvass issues between the same persons referred to trial by another judge. The draft order attached to the application for directions sought substantive and not procedural relief.

In my view, an application for directions that seeks, in its draft order, the eviction of the respondent from the premises is totally misconceived and should have been dismissed on that basis alone without much ado.

The merits of the case involving the Agreement of Sale which the applicant is harping on ad nauseum could only be resolved properly at a trial. The judge in the previous proceedings was quite correct in referring the issues for trial. This was done with the consent of the applicant's legal practitioner and therefore with the consent of the appellant. The learned Judge, in my view, was correct in ordering the matter to go to trial.

It would appear from the record that the trial did not take place because the applicant was in default.

Where a default judgment has been granted, the recourse open to an aggrieved party is to apply for rescission of the judgment.

It may well be that the applicant applied for rescission of the judgment; that is not very clear on the record. But, whatever the applicant's grievance may have been in respect of those proceedings, they are totally irrelevant to the filing of an appeal against the judgment of KAMOCHA J.

I am satisfied that the applicant has no prospects of successfully appealing against the judgment of KAMOCHA J, No. HB44/2000. On that basis alone, even if I were to forego the failure to note an appeal on time, this application must fail.

Before concluding, I would like to make the following observations:

Voluminous submissions, affidavits, and documents relating to the validity or otherwise of an Agreement of Sale, and the issue and status of the Agreement of Sale, were filed in this application for condonation. These were totally irrelevant to the issues I need to determine in this case, namely, whether or not KAMOCHA J was correct in dismissing an application for directions seeking the discharge of a provisional order which had already been referred to trial by another Judge.

It is trite that supporting affidavits in an application should contain essential averments in support of the relief claimed.

The papers filed in this case bear no resemblance to the above requirement. For instance, the founding affidavit and its attachments run into some forty pages, yet there is no explanation as to why the Notice of Appeal was not filed in time. Further, as part of the application, a bundle of documents of about seventy pages headed 'Evidence' was filed. Another bundle of documents entitled 'Supporting Heads of Argument', consisting of not less than fifty-five pages was also filed. A good part of the so-called 'Supplementary Heads of Argument' is devoted to principles of what the applicant called 'Advocacy', 'Advocacy A Code of Conduct', 'Objections in limine'.

A long list of the cases that were cited and summarised in the supplementary heads of argument had no bearing on the application for condonation of the late noting of an appeal.

There was also another bundle of documents filed in this application headed 'Civil Appeal'. This bundle of documents amounted to some forty pages and consisted of what the applicant called 'Opening Speech', 'Consolidated Heads', and 'Closing Speech'.

In brief, this application was overloaded with rubbish.

Worse still, after hearing this matter, I reserved judgment. The applicant, without the leave of the Judge, filed yet another lengthy document, in which he sought to explain why the Notice of Appeal was not filed on time and to lecture me on how a CHIEF JUSTICE should discharge his duties and his intention to write a book about this case.

I have completely disregarded this document, as it was improperly placed before me. The application stands or falls on the founding affidavit. It is not open to litigants to file affidavits in complete disregard of the Rules.

Apart from this, the applicant has impugned the integrity of virtually all the Judges who handled this case.

There is absolutely no basis for impugning the integrity of the Judges who have handled this case. This case constitutes the most blatant abuse of court process I have ever come across. This kind of abuse of court process is unacceptable.

It is also apparent from the record that the applicant was imprisoned for contempt of court for refusing to obey a court order in respect of proceedings involving the same parties to this application. The inescapable inference is that the applicant has very little regard for court process.

It is quite apparent from the nature of the documents filed in these proceedings that the applicant is conducting himself in this manner at the instance of or with the assistance of some 'bush lawyer' with very limited knowledge of the law and the procedures of the courts.

Be that as it may, I hold the applicant accountable for this abuse of court process and warn him of the risk of an order of perpetual silence.

In the meantime there is need for the Court to protect its process from this kind of abuse.

The Court has inherent jurisdiction to regulate its own processes, which it can use to protect its process from abuse: see De Villiers and Anor v McIntyre NO 1921 AD 435.

In the exercise of that jurisdiction, I will therefore issue the following directive:

“THAT, the applicant is barred from commencing any litigation concerning the disputed sale of Stand No. 11747 Nkulumane, Bulawayo, without first obtaining the leave of a Judge of the High Court or this Court.”

For the foregoing reasons, the application is dismissed. There will be no order as to costs as none was asked for.

HB189-18 : CLAUDIUS MANAMELA and BRIGHTON NANGA and SIBONGILE MANAMELA vs ROSEWELL ZULU and APOSTOLIC FAITH MISSION OF AFRICA INTL and CLEMENT NYATHI and APOSTOLIC FAITH MISSION OF AFRICA
Ruled By: MABHIKWA J

On 30 January 2018, the applicants caused to issue legal proceedings, an application, out of this Honourable Court –

“In the High Court of Zimbabwe, held in Bulawayo. The applicant sought an order that it be declared that:

(1) That the President of the Apostolic Faith Mission of Africa International is Reverend Zulu.

(2) That the President of the Apostolic Faith Mission of Africa is Reverend Clement Nyathi.”

On the day of the hearing, on 10 July 2018, the first applicant quickly made what he termed an application for the matter to be removed from the roll.

That application, which must have taken everyone by surprise, was vigorously opposed by the first, second and fourth respondents.

The court may mention, at this stage, that, for all intents and purposes, it became clear, as the matter progressed, that this was an application (i.e. the main application and the “mini” application for removal from) were being orchestrated by the first applicant.

The second applicant, despite being present in court, and allegedly appearing in an individual capacity, said virtually nothing apart from bending over for a second to say he was associating himself with the first applicant's submissions - and this only when asked by the court.

The third applicant was not even present, although, upon inquiry by the court, the three (3) applicants were said, by the first applicant, to be appearing purely in their individual capacity.

The first applicant then told the court that for some reason, the third applicant had failed to attend court.

It was however clear that the first applicant, as he went on over-drive in submissions, was really speaking on behalf of all three (3) applicants - and moreso supposedly on behalf of a “church”.

This court had to discover later on…, that the third applicant is his wife, as shown by various other matters brought before the courts.

As the first applicant insisted, the court decided not to shut him out, as an unrepresented litigant, but to give him a long ear so to speak.

The court still asked him, however, to be clear on what application exactly he was making; in terms of what legal basis he was making it; and the reasons why he was making it.

The first applicant then said that this matter was heard before Mr Justice BERE who clearly recused and also clearly stated that no Judge from the Bulawayo High Court would hear the matter. He said that Justice BERE thus and then recused himself on his behalf and on behalf of all Bulawayo High Court Judges.

He went on to say both parties were therefore of the view that the matter would be transferred elsewhere and were shocked to be told that they were appearing before me.

He went on to say both parties would still press that no Bulawayo High Court Judge should hear the matter hence the application for its removal from the roll.

The court later learnt, from a copy of an order produced by counsel for the first, second and fourth respondents, and after reading a 'swarm' of other matters by the same litigants, that;

(i) Firstly, my brother Mr Justice BERE…, did not recuse himself from, this matter.

(ii) Secondly, and in any case, he did not and could not have legally recused himself on behalf of all other Bulawayo Judges. He clearly recused himself on his own behalf only.

(iii) Thirdly, both parties, the first applicant seemed to mean that the applicants and the respondents were all anticipating that the matter would be transferred elsewhere or would still pursue for that position. Clearly, that was not the case, he must himself have been taken by surprise, not only the respondents but also the second applicant. The third applicant was not in attendance anyway.

When the court sought to confirm whether indeed a transfer of the matter was the expectation and wish of both parties, counsel for the first, second, and fourth respondents emphatically disagreed and submitted that the court is being misled.

Counsel for the first, second, and fourth respondents also shed light on the plethora of cases, mostly applications brought before the courts by the three (3) applicants and/or their group. He further submitted that the applicants merely make a flurry of accusations, unfoundedly, with the sole purpose of diverting the court from its core business and mandate to properly deal with issues before it.

Ultimately, the first applicant in fact then and again went overdrive in his accusations, adding to the list counsel for the first, second, and fourth respondents himself and the Registrar's officer.

He even accused all Bulawayo Judges of “discussing” these matters before going into court.

He could not back down - even after being reminded that the Judge in this hearing had just come from Harare.

Unclear and unheralded as it sounded, the first applicant was directed to file his clear and written application before 18 July 2018 and serve it on the defendants' counsel.

He did not by close of business on 17 July 2018. The application/request had no merit, and, in any case, was vigorously opposed.

It is dismissed.

Coming to the main application, the court had sought to look at all the other matters involving the parties that kept on coming up in this application to have a better understanding of what was going on.

This was moreso because, from the reading of the papers, one was left wondering why such a matter was brought to court by way of an application in the first place. In fact, it had been initially brought as an urgent chamber application.

I must say that the respondents at…, point 18.4 of their opposing affidavit also make the same point; that the application procedure should not be used in matters that are as contentious as this one.

Secondly, the applicants, in their notice of application, state that the application is made in terms of Order 30 of the High Court Rules, 1971.

Order 30 provides for interpleader applications. The facts in this application have nothing to do with an interpleader – absolutely.

In addition to the court's reservations, as well as point 18.4 of the respondents' opposing affidavit, my brother, KAMOCHA J…, stated, on 5 February 2017, in case number HC302/17, that:

“This matter appears to have apparent and numerous disputes of fact about the ownership of the church and those can only be settled through a fully fledged trial.”

He dismissed the application.

This court managed to get 10 cases from this Honourable Court involving these parties - at times with other members of the church(s) involved. But, there appears to be about half a dozen more when considering those at the High Court, Harare, the Supreme Court, and Constitutional Court as well as the Magistrates' Court.

95% or more have been brought by the applicants or with their involvement.

There is no doubt, after reading a majority of those cases, that the applicants have taken it upon themselves to throw applications of whatever nature to these courts like confetti at a wedding.

Indeed, like my brothers and sister Judges before, it is like a hobby to them.

In my view, they seem like people who sit over coffee laughing and agree to file yet another application in the hope that they may get a contradicting decision, laugh their lungs out, and use it.

I would not agree more with my brother MATHONSI J, in case number HB236-17, that, “is common ground that when the church split in 2014, Manamela went with the group that totally moved away from the church premises…,. Quite clearly, Manamela wants to use the court to allow him to get into the premises which he left in 2014.”

The Judge went on to highlight what has been highlighted in various judgments involving the same litigants, that, from the checkered history of the matter, the applicants file application in the courts seeking literally the same relief, that of being allowed to “sneak back” into the church premises they abandoned out of their free will. This has become their pastime.

The current application is no exception.

MANGOTA J and the Supreme Court have stated the same.

In the current application, the applicants curiously make an application which seemingly brings no benefit to them but to one of the respondents in their application. This is the third respondent, a Reverend Clement Nyathi, who, for obvious reasons, does not oppose the application and makes no appearance.

A reading of the plethora of the other cases shows that the third respondent is, in fact, part of the applicants only thrown in the current case among the pigeons so to speak.

To that extent, this court would agree with counsel for the first, second, and fourth respondents that the intention is to pool wool over the court's face.

The court will agree that this application is more of an application made on behalf of Clement Nyathi, who has lost all matters involving and concerning the leadership of the church and control of the assets thereof. They are nothing more than foot soldiers of Clement Nyathi. They have lost almost all the matters.

The court will re-iterate my brother MATHONSI J's warning, that, a litigant or litigants cannot be allowed to enjoy filing frivolous applications at the same time abusing the court and other litigants.

This court will add a warning, to the first applicant in particular, that, it cannot allow a situation where officers of the court, legal practitioners included, are just scandalised by spurious allegations completely unfounded and unsubstantiated.

Surely, the allegations against BERE JA…, were quite stinging; a pattern developed when, in this case, similar allegations were made on counsel for the first, second, and fourth respondents, and the Registrar - all this because the applicant wants, at all cost, to achieve a particular objective at a particular time.

The court can only register its disdain for such an attitude to litigation and may not appear to condone it in future.

These courts are not meant for past-time games but for the genuine resolution of genuine disputes by genuine litigants.

In the result, the application be and is hereby dismissed.

The applicants be and are hereby barred from commencing litigation, whatsoever, in any court of Zimbabwe, in connection with, or concerning the first respondent or the respondent church whether described as Apostolic Faith Mission of Africa or Apostolic Faith International, without the leave of a Judge or the High Court of Zimbabwe.

The applicants be and are hereby ordered, jointly and severally, the one paying the other to be absolved, to pay the costs of suit of this application on an attorney and client scale.

HH443-13 : JONAS MUSHOSHO vs LLOYD MUDIMU and THE DEPUTY SHERIFF
Ruled By: CHIGUMBA J

This is an application for rescission of judgment in two matters, HC6627/10 and HC3805/08, brought in terms of Order 49 Rule 449(1)(a) of the High Court Rules, 1971.

The relief sought by the applicant, is for an order in the following terms:

1. The judgments obtained by the 1st respondent against the applicant in case numbers HC3508/08 and HC6627/10 be and are hereby set aside.

2. The title deeds to Stand Number 2819 Bluffhill Township, Bluffhill, Harare which 1st respondent obtained as a result of an order granted to him in case number HC3508/08 be and are hereby nullified.

3. Applicant be and is hereby declared the sole owner of Stand 2819 Bluffhill Township of Bluffhill held under Deed of Transfer number 004804/98 in his favor.

4. 1st respondent and any person claiming occupation through him from Stand Number 2819 Bluffhill Township of Bluffhill be and are hereby ordered to vacate the property within seven days of the date of service of this order.

5. 1st respondent pay costs of suit on a legal practitioner client scale.

In the founding affidavit, the applicant averred that: he is the lawful owner of Stand 2819 Bluffhill Township of Bluffhill, Harare (hereinafter referred to as the Bluffhill stand) in terms of a Deed of Transfer number 004804/98.

On or about 9 April 2007, he discovered that there was construction going on at this property, despite there not having been an agreement entered into by him to sell this property to anyone.

On making inquiry, he found out that the first respondent was responsible for the construction on the basis that he had bought the Stand from “an old man and pensioner, Jonas Mushosho, of Matepetepa in Mashonaland Central.”

During an initial telecommunication with the first respondent, he advised him that he was Jonas Mushosho; but that he had not sold the Bluffhill stand to anyone. The first respondent, in turn, advised him that he had already taken transfer of the property, and referred him to his legal practitioners, Messrs Dinha Bonongwe & Partners.

On his instructions, his legal practitioners wrote to the first respondent, on the 12 April 2007, advising him to cease construction on the Bluffhill stand, and to vacate within twenty-four hours.

He reported the matter to the police who accompanied him to the Stand on 28 April 2007.

On 30 April 2007, the parties met at the Criminal Investigations Department at Ahmed House in Harare. According to the applicant, the first respondent admitted that he did not know him and had never had dealings with him, and that he had been cheated by a person impersonating the applicant - the real 'Jonas Mushosho'.

The applicant averred that the first respondent voluntarily surrendered the keys to the property that he had built on the Bluffhill stand.

Detective Sergeant Rodwell Mwandayi, the Investigating Officer in this matter, deposed to an affidavit on 28 May 2007 in which he confirmed the applicant's version of events.

On 8 May 2007, the first respondent applied for, and was granted a spoliation order in the Magistrate's Court, under case number 3877/07. He attached to that application, an Agreement of Sale entered into by him and Jonas Mushosho, Identity card number NR63-286395 J18, of House Number 37 Matepatepa, Bindura. The agreement is dated 28 June 2006, and it states that Jonas Mushosho was the owner of Stand 2819 Bluffhill, Harare which he sold to the first respondent for ZW$1,2 billion.

The agreement was signed and witnessed before legal practitioners.

Attached to the Agreement of Sale was an affidavit in which Jonas Mushosho confirmed that he had sold the Stand to the first respondent. The affidavit was commissioned before the same firm of legal practitioners. Deed of Transfer number 4804/98 was attached, which showed that the registered owner of the Bluffhill stand was Jonas Mushosho, born on 24 November 1958.

On 4 July 2007, under case number HC3878/07, in the High Court, the applicant filed for the first respondent's eviction from the Bluffhill stand, and for a declaration that the agreement of sale relied on by him, was null and void.

Judgment was entered in favor of the applicant, in default of filing a plea by the first respondent.

The first respondent applied for rescission of this judgment, and the applicant admits that he did not oppose this application.

The first respondent then applied for an order compelling the applicant to sign transfer documents to transfer the Bluffhill stand into his name, under case number HC2775/07.

The applicant opposed that application.

On 8 February 2008, under case number HC538/08, it was ordered that:

1. First respondent be interdicted from carrying on further developments on Stand 2819 Bluffhill, Harare until the matter was finalized.

2. Applicant and the Deputy Sheriff stay execution of the default judgment granted in HC3878/07.

3. Cases HC2775/07 and HC3878/07 be joined as one action.

The two matters which had been joined were eventually set down for a pre-trial conference on 8 April 2010.

The applicant averred that the first respondent's legal practitioners of record at the time, Messrs Manase & Manase, refused to accept service of the notice of set down of the pretrial conference (see paragraph 15 of the founding affidavit).

It would appear, from the letter written to the Law Society by the applicant's legal practitioners, that service of the notice was attempted to be made at 9;30 am indicating that a pre-trial conference was set down before JUSTICE HUNGWE at 12:30pm that day.

JUSTICE HUNGWE made the following order, on 8 April 2008, in case numbers HC3878/07 and HC2775/07:

1. Respondent with action in HC2775/07 withdrew its case and tendered wasted costs on the 26th February 2008.

2. The Honorable F. CHATUKUTA J's order, in case number HC3878/07, is hereby revived thereby superceding the HONORABLE BHUNU'S order in case number HC538/08.

IT IS ORDERED THAT:

(a) Respondent (Mudimu) and any person claiming occupation through him from Stand 2819 Bluffhill Township Bluffhill, Harare be and are hereby ordered to vacate the property within seven days of the date of this order.

(b) The Agreements of Sale between respondent and one impersonator 'Jonas Mushosho' dated June 23 2006, and June 28, 2006 be and are declared null and void.

(c) Applicant be and is hereby declared the sole owner of Stand Number 2819 Bluffhill Township, Bluffhill, Harare, held under Deed of Transfer No. 004804/98 in his favour.

(d) The spoliation order granted in case number 3877/07 be and is hereby set aside.

(e) Respondent pays costs of this suit on an attorney-client scale.

The applicant averred that his attempts to enforce this order were met with stiff resistance, and that the first respondent refused to vacate the premises on the basis that he had since taken transfer and now held the Bluffhill stand under Deed of Transfer number 0005304/09.

The first respondent then applied for rescission of the judgment made by HUNGWE J, and for stay of execution pending determination of the application for rescission of judgement. These two applications were filed under case numbers HC6627/10 and HC6794/10.

The applicant opposed both applications, and filed a counter-application to the application for rescission of judgment.

On 11 October 2010, MAKONI J issued an order dismissing the first respondent's application in case number HC6794/10, the order to stay execution.

The applicant averred that he opposed the first respondent's application for rescission of HUNGWE J's judgment granted in the joined cases HC3878/07 and 2775/07.

The applicant's notice of opposition to the application for rescission appears to have been filed of record on or about 6 October 2010. His counter application was filed on the same date.

He counterclaimed for a declaratory order that he is the sole and legal owner of the Bluffhill stand held under Deed of Transfer 0004804/98, and for an order that Deed of Transfer 0005304/09 be declared null and void.

The application by the first respondent to rescind HUNGWE J's order was set down on the unopposed roll on 1 December 2010, and the following order was granted, unopposed, by BHUNU J:

1. Default judgment entered against applicant (Mudimu) in the consolidated case number HC2775/10 be and is hereby rescinded.

2. Costs of suit shall be borne by the respondent (Mushosho).

The applicant denied ever having been served with papers in case number HC3508/08, in which the first respondent obtained an order from MAVANGIRA J, in default of appearance by the applicant, on 24 September 2008, to the effect that the applicant sign all necessary documents to effect transfer of the Bluffhill stand into the first respondent's name within seven days of the date of that order, or failing which the Deputy Sheriff was authorized to sign the documents on his behalf.

The applicant averred that he suspects that Deed of Transfer number 0005304/09 came into existence that way.

The applicant contended that the first respondent obtained the order in case number HC3508/08 fraudulently and under unclear circumstances.

The applicant averred that he was never served with any papers and that had he been served, he would have vigorously opposed the granting of the order.

The applicant averred that the first respondent never approached him and requested that he sign transfer documents within seven days of 24 September 2008, as directed by the order.

The applicant averred, that, as at 24 September 2008, when the first respondent obtained the order from MAVHANGIRA J, the consolidated matters under HC538/08 were still pending determination on similar issues.

The applicant contended further, that, the order under HC6627/10, which rescinded judgment in the consolidated cases determined by HUNGWE J, was obtained irregularly and in unclear circumstances.

He contended that his counter-claim was not determined or referred to.

He reiterated that he was not in default, and that the matter was erroneously set down on the unopposed roll without his knowledge.

The applicant's claim is that the orders obtained by the first respondent, in HC3508/08 before MAVANGIRA J, and HC6627/10 before BHUNU J, were obtained fraudulently and irregularly and ought to be rescinded.

The first respondent, in his opposing affidavit, raised a preliminary point that the application is without merit and should be dismissed as it seeks the rescission of a judgment entered against the applicant on 25 September 2008 in HC3508/08, four years later, and on 1 December 2010, in HC6627/10, two years later.

The preliminary point raised is that an applicant has a period of one month, from the date when he becomes aware of a judgment, to apply for its rescission, and may not do so thereafter unless he applies for condonation of the late filing first.

The first respondent averred that the applicant, in bringing this application, is in breach of Order 9 Rule 63 of the Rules of this court.

The first respondent averred that the applicant ought to be ordered to pay costs de bonis propriis because his legal practitioners were advised of the apparent breach of the Rules of this court, on 3 December 2012, but have persisted with their application.

Regarding the merits of the application, the first respondent averred that the applicant sold the Bluffhill stand to him on 23 June 2006 through Messrs Dinha, Bonongwe & Partners legal practitioners.

The first respondent averred that the applicant received the full purchase price and tendered a letter dated 24 October 2012 in which Mr. Bonongwe of Messrs Dinha Bonongwe & Partners confirms that the parties entered into an Agreement of Sale in respect of Stand 2819 Bluffhill, Harare and that the sale was perfected.

The letter states that a Mr. Robert Nyawasha, a paralegal with that firm, was able to positively identify both parties as being the parties who entered into the Agreement of Sale.

Both parties' identity card numbers were supplied.

The first respondent contended that he was forcibly despoiled of the property by the applicant, and that he was intimidated into handing over the keys to the property, a cottage, that he had constructed and which he was in occupation of.

The first respondent averred that the applicant attempted to serve a notice of set down of the pre-trial conference before HUNGWE J, a mere thirty minutes before the set down time, and confirmed that the receptionist at Messrs Manase and Manase, his legal practitioners of record, refused to accept service of the notice of set down.

The first respondent averred that the applicant produced a fake notice to HUNGWE J, indicating that the first respondent had withdrawn its claim and tendered wasted costs, at the pre-trial conference, in the absence of the first respondent, who had not been correctly served with notice of set down.

The first respondent averred that he applied for rescission of the judgment handed down by HUNGWE J.

He confirmed that the title deeds in his name were obtained as a result of the order granted by MAVANGIRA J, under HC3508/08.

The first respondent contended that the court in HC3508/08 would not have granted the order had it not been satisfied that the papers had been duly served on the applicant, and that he was indeed in default.

He challenged the applicant to state whether a perusal of that record failed to show that there was adequate proof of service of the process on him.

The first respondent reiterated that the applicant failed to file opposition in time in both matters, and that he was justified in setting down HC6627/10 on the unopposed roll for determination.

The first respondent contended that no evidence of error on the part of those two courts had been alluded to or provided by the applicant.

The applicant filed an answering affidavit in which he denied that this application is devoid of merit.

He contended that his application is not premised on Rule 63, but on Rule 449(1)(a) of the Rules of this Court.

According to the applicant, an application in terms of Rule 449 is not time specific, and all that one has to show is that the order sought to be rescinded was erroneously sought or erroneously obtained in the absence of the applicant.

The applicant contended that the first respondent's point in limine ought to be dismissed and urged the court not to accede to the request for an order of costs de bonis propriis.

The applicant contended that Messrs Dinha Bonongwe & Partners participated in the fraud perpetrated against him by the first respondent, and caused the illegal transfer of the Bluffhill stand into the first respondent's name.

The issue that falls for determination is this: is there sufficient evidence before the court, on the basis of which the court should grant rescission of the two judgments in case numbers HC3508/08 and HC6627/10; and, if so, should the court be guided by the provisions of Order 9 Rule 63 or Order 49 Rule 449(1)(a)?

Put simply;

(i) The first issue to be determined is that of which of the provisions of the High Court Rules 1971, out of those that provide for rescission of judgments granted in default of one of the parties, is best suited to determine the dispute between the parties in this case.

(ii) The second issue for determination after that will be whether, in the circumstances of this case, on the evidence before the court, the applicant should be granted the relief that he seeks.

Order 9 Rule 63 provides as follows:

“63. Court may set aside judgment given in default

(1) A party against whom judgment has been given in default, whether under these rules or under any other law, may make a court application, not later than one month after he has had knowledge of the judgment, for the judgment to be set aside.

(2) If the court is satisfied, on an application in terms of sub rule (1), that there is good and sufficient cause to do so, the court may set aside the judgment concerned and give leave to the defendant to defend or to the plaintiff to prosecute his action, on such terms as to costs and otherwise as the court considers just.”

Order 49 Rule 449 provides as follows:

“449. Correction, variation and rescission of judgments and orders

(1) The court or a judge may, in addition to any other power it or he may have mero motu or upon the application of any party affected, correct, rescind, or vary any judgment or order —

(a) That was erroneously sought or erroneously granted in the absence of any party affected thereby; or

(b)…,.

(c)…,.”

The applicant relied on the case of Motor Cycle (Pvt) Ltd v Old Mutual Property Investments Corporation Ltd HH04-07…, where CHATUKUTA J said:

“…,. Mr. Mushonga submitted that the applicant was seeking rescission in terms of Rule 449 as read together with Order 9 Rule 63.

Firstly, applicant does not refer to Rule 63 in its pleadings. Rule 63 was first mentioned in the oral submissions and therefore was not pleaded.

Secondly, I am not sure whether the two rules can be read together. It is my view that there are three separate ways in which a judgment in default of one party may be set aside. This can be done in terms of Rule 63, or Rule 449(1)(a) or in terms of the common law.”

There are two noteworthy issues that distinguish Motor Cycle (Pvt) Ltd v Old Mutual Property Investments Corporation Ltd HH04-07 and the issue under consideration:

(i) The first is that in Motor Cycle (Pvt) Ltd v Old Mutual Property Investments Corporation Ltd HH04-07, it was not in dispute that a defective notice of entry of appearance to defend had been filed of record.

In the matter under consideration, it is not clear what the error was, and whether it was an error relating to the pleadings filed, or on the part of the court in accepting such pleadings.

(ii) The second distinguishing factor is that in Motor Cycle (Pvt) Ltd v Old Mutual Property Investments Corporation Ltd HH04-07, the alleged error was defined as an error of law and was clearly spelt out as such in the pleadings.

It is my view, that, in order to qualify for relief under Rule 449(1)(a), a litigant must show that:

1. The judgment was erroneously sought or erroneously granted;

2. The judgment was granted in the absence of the applicant or one of the parties;

3. The applicant's rights or interests were affected by the judgment: see Mutebwa v Mutebwa and Anor 2001 (2) SA 193;

4. There has been no inordinate delay in applying for rescission of the judgment.

It is my view, that, in order to qualify for relief under Rule 63, a litigant must show that:

1. Judgment was given in the absence of the applicant under these Rules or any other law.

2. The application was filed of record and set down for hearing within one calendar month of the date when the applicant acquired knowledge of the judgment.

3. Condonation of late filing has been sought, and obtained, where the applicant fails to apply for rescission within one month of the date of knowledge of the judgement.

4. There is “good and sufficient cause” for the granting of the order.

See Viking Woodwork v Blue Bella Enterprises 1988 (2) ZLR 249 (S)…,; Highline Motor Spares 1933 (Pvt) Ltd & Ors v Zimbank Corp Ltd 2002 (1) ZLR 514 (S)…,; Sibanda v Ntini 2002 (1) ZLR 264 (S); Pastor Jameson Moyo & 3 Ors v Reverend Richard John Sibanda & The Apostolic Faith Mission SC06-10.

5. The phrase 'good and sufficient cause' has been construed to mean that the applicant must:

(a) Give a reasonable and acceptable explanation for his/her default;

(b) Prove that the application for rescission is bona fide and not made with the intention of merely delaying the plaintiff's claim; and

(c) Show that he/she has a bona fide defence to the plaintiff's claim.

See Songore v Olivine Industries (Pvt) Ltd 1988 (2) ZLR 210.

It is also my view, that, in order to qualify for relief in terms of this court's common law power to rescind its own judgments, a litigant must show that:

1. The court's discretion that it is being asked to exercise is broader than the requirements of both Rule 449 and Rule 63.

2. Whether, having regard to all the circumstances of the case, including the applicant's explanation for the default, this is a proper case for the grant of the indulgence.

See Gondo & Anor v Syfrets Merchant Bank Ltd 1997 (1) ZLR 201; and De Wet & Ors v Western Bank Ltd 1979 (2) SA 1031…,.

The question is: what sort of error will suffice to bring an applicant squarely within the ambit of Rule 449(1)(a)?

Is it an error of fact, an error of law, or both?

An 'error' in common and ordinary parlay, is defined as: a mistake, fault, blunder, boo-boo, slip, slip-up, inaccuracy, and miscalculation.

The law is settled on the issue of if or when and whether this court ought to grant rescission of its own judgments in terms of Rule 449.

In South Africa, In Bakoven Ltd v G J Howes (Pty) Ltd 1992 (2) SA 466 (E)…, ERASMUS J said of the almost identically worded Rule 42(1)(a) of the South African Uniform Rules:

"It is an abuse of the process of the court to bring such an application some five years and eight months later. Matters must have some finality and Rule 449 was not designed to let defendants have a second bite at the cherry by raising a defense which should have been raised when the summons was issued."

The Zimbabwean courts have followed some aspects of the South African position and rejected others.

In Grantuilly (Pvt) Ltd & Anor v UDC Ltd 2000 (1) ZLR 361 (SC) the court held that;

“The judgment had been granted because, at the time of its issue, the judge was unaware of a relevant fact, the provisions of the clause in the acknowledgment of debt. Had he known of the clause, he would not have granted the judgment he did.

There was ample precedent for the proposition that a court to which application is made for rescission is not confined to the record of proceedings in deciding whether a judgment was erroneously granted. The wording of Rule 449(1)(a) of the High Court Rules made it clear that a party against whom default judgment had been granted was entitled to place before the correcting, varying, or rescinding court facts which had not been before the court granting the default judgment.

It was held, further, that it is not necessary for a party seeking relief under Rule 449 to show 'good cause'.

If a court holds that the default judgment was erroneously granted, it may be corrected, rescinded, or varied without further enquiry.

The court also found that Rule 449 is one of the exceptions to the general principle that once a court has pronounced a final judgment or order it is functus officio and has itself no authority to correct, alter, or supplement it…,.

See Firestone South Africa (Pty) Ltd v Genticuro AG 1977 (4) SA 298 (A) at 306 F-G; Stumbles & Rowe v Mattinson; Mattinson v Stephens & Ors 1989 (1) ZLR 172 (H) at 174 D-F; Tshivhase Royal Council & C Anor v Tshivhase & Anor; Tshivhase & Anor v Tshivhase & Anor 1992 (4) SA 852 (A) at 862 I-J.”

It is clear, that, to qualify for relief under Rule 449(1)(a), mistakes of fact are not precluded, although it is apparent that the mistakes referred to are not trivial or petty clerical ones. The mistake must have been made on the part of the party seeking the judgment in default, or of the judge who grants it, and the applicant ought to show that he was prejudiced as a result, or that there was a miscarriage of justice.

In other words, despite having a good defence on the merits, judgment was given against him in error, as a result of such mistake.

The law is also clear, that, any fact which was not brought to the attention of the court at the time judgment in default was given, may be placed before the court dealing with an application to rescind judgment in terms of Rule 449.

The allegations of fraud, made by the applicant, were not placed before the courts that determined the judgments that the applicant seeks to have set aside. The applicant is now entitled to place evidence of such fraud before this court.

Disposition

It is my view, that, the differences in the requirements of the two High Court rules are clear.

Rule 63 has strict time limits which must be adhered to, and, a litigant who falls foul of the time-limits will not be heard unless condonation is first sought and obtained.

The phrase 'good and sufficient cause' is seemingly wide-ranging and all encompassing. The explanation for the default must be reasonable and/or acceptable. The applicant must show that he has a bona fide defence to the claim.

On the other hand, the court's common law discretion to rescind its own judgments is wide and requires that regard be had to all the circumstances of the case, including the explanation for, and the length of the delay in bringing the application, and the prospects of success of the applicant in the main matter.

In my view, Rule 63 is more in tandem with this court's common law discretion to rescind its own judgments.

I say so because, when regard is had to the wording of Rule 63, that, “a party against whom judgment has been given in default, whether under these Rules or under any other law,”…, it becomes clear that Rule 63 recognizes the possibility that judgments may be rescinded under other laws which may not necessarily fall under the Rules of this court, such as the common law discretion that this court has to rescind its own judgments.

Rule 449(1)(a) is narrower than Rule 63.

It does not require evidence of 'good and sufficient cause' although it appears to require some consideration of an applicant's prospects of success in the main matter. It appears deceptively simple in its requirement of evidence of an error that caused or induced a court to grant judgment in default in circumstances where it would not have ordinarily granted such judgment.

It is my view that the law is clear on the question of which vehicle a party seeking rescission of judgment given in default may use.

There are three vehicles; Rule 63, Rule 449 and common law discretionary power.

Depending on the circumstances of the case, an applicant is at liberty to elect to utilize whichever one of those three vehicles best suits the circumstances of the case: see Gondo & Anor v Syfrets Merchant Bank Ltd 1997 (1) ZLR 201.

In my view, whichever vehicle a litigant chooses, the court will have to consider the question of length of time that will have elapsed since the judgment sought to be rescinded was granted.

It follows that the first respondent's preliminary point cannot be upheld.

The applicant is not duty bound to proceed in terms of Rule 63. However, the court's scrutiny of the circumstances of this case will show whether the applicant was wise in electing to proceed in terms of Rule 449(1)(a).

Having disposed of the point in limine, I now turn to the merits of the matter.

The applicant contended, that, its non-appearance in both instances was caused by the first respondent's fraudulent and/or irregular set down of the matters without notice, despite clear opposition, and despite the absence of proof of service on him.

Rule 449(1)(a) requires that an applicant demonstrates a simple error, either in the seeking of the default judgment, or on the part of the court in granting it.

My reading of the applicant's papers is that the applicant does not expressly state that the error lay in the erroneous seeking of the judgments. It is implied, in the applicant's papers, that the allegation is that the error lay with the court in being influenced by papers fraudulently or irregularly filed, being almost “duped” as it were, into granting the two judgments when it normally or ordinarily would not have done so.

The court must decide, having regard to the papers filed of record by the applicant, whether there was any mistake, or blunder, or miscalculation, on the part of the court in granting the two judgments that are sought to be impugned.

The applicant, correctly in my view, sought to rely on the case of Gondo & Anor v Syfrets Merchant Bank Ltd 1997 (1) ZLR 201 as authority for the proposition that any type of error will suffice for purposes of entitling an applicant to relief under Rule 449(1)(a).

It would appear, that, this case is distinguishable from the one under consideration because, in that case, judgment had been granted by consent and its rescission was sought on the basis of an error common to both parties in terms of Rule 449(1)(c). The error related to a question of law, the debtors had not opposed the granting of the judgment because they were not aware of the in duplum rule. It was held that, even assuming that the parties were laboring under a common mistake, the applicants would have had to go further and prove that the amount of the judgment debt had breached the in duplum rule.

In other words, the defence in the main matter must have merit.

I accept that the sort of error that entitles a litigant to proceed in terms of Rule 449(1)(a) can be one of fact or of law, as long as there is evidence that the court was influenced by such error in granting the default judgment.

I also accept that before rescinding the judgment, a court must consider whether the applicant has prospects of success on the merits of the matter.

In seeking the rescission of the two judgments granted in default of appearance by himself or his legal practitioner of record, in terms of Rule 449(1)(a), the applicant contended that, in case number HC3508/08, the first respondent obtained judgment in default of the applicant's appearance. The applicant averred that the error that occurred was that judgment was granted despite the fact that “…, court papers leading to the grant of such default judgment were never served on the applicant…, neither did the first respondent serve papers on the applicant's legal practitioners of record.”

It is my view, based on the papers filed of record, that the applicant did not provide any explanation, let alone an acceptable or reasonable explanation, as to why or how the court which granted the judgment in default did so in the alleged clear absence of proof of service, on him or his legal practitioner, or a certificate of service as required in terms of Order 5 Rule 42B(1)(b) of the Rules of this Court.

It is my view that the presumption that the judgment granted in default was done so on the basis of adequate proof of service to the court, was not adequately rebutted in the papers filed of record by the applicant.

The applicant contended, further, that, in case number HC6627/10, an “absurdity” occurred, in that, the applicant had filed his opposing papers to the application with the Registrar of this court and served the same on the first respondent's legal practitioners, who then erroneously set the matter down for hearing on the unopposed roll as if no opposition had been filed, and a default judgment was erroneously granted by the court.

The notice of opposition filed of record, as part of the applicant's papers, appears to have been filed of record with the Registrar of this court on 6 October 2010. Judgment in this matter was granted in 2012 - a good two years after the opposing papers were allegedly filed of record: yet, nowhere on those papers is there a date stamp to show that the opposing papers were served on the first respondent's legal practitioners of record.

The presumption that arises is that the notice of opposition may have been filed of record with the Registrar, but, there is no proof that it was served on the first respondent. Not even a certificate of service by the applicant was filed of record in terms of Order 5 Rule 42B(1)(b).

In the absence of service on the first respondent, and assuming that some administrative error was made, and that there was no copy of the opposing papers in the record, I fail to see the mistake made by the court in granting judgment in default.

The judgment of the court was based on the papers before it at the time.

The court could not have guessed that opposing papers had been filed of record and somehow fallen out of the record. No explanation at all has been given as to why those opposing papers were not served on the first respondent. The matter would not have been set down on the unopposed roll had the first respondent been aware that it was opposed.

The applicant has not rebutted the presumption that opposing papers were not served on the first respondent.

It is my view, that, no mistake was alluded to or proved from the papers filed of record.

There is evidence that the applicant is the one who sold the Bluff-hill stand to the first respondent. There is a witness who can identify him at Messrs Bonongwe & Partners legal practitioners as being the seller of the Bluff Hill stand.

He has not proved fraud on the part of the first respondent or Messrs Dinha Bonongwe & Partners.

In the absence of proof of fraud, the Agreement of Sale is valid and binding on him. There is evidence that the sale was perfected.

In my view, the applicant has no prospects of success in the main matter.

I find that the applicant has failed, in the circumstances of this case, on the papers before me, to furnish adequate proof of fraud, irregularities, or any fault in respect of both judgments sought to be impugned, on the part of the court in granting each judgment.

None of the elements of fraud were expressly averred or pleaded. Fraud is a criminal offence.

It is not clear whether there was a misrepresentation, and, if so, who made it to the court. There is no evidence that the court relied on any misrepresentation when it granted the two judgments.

There is a bald assertion that there was fraud in the filing of the papers; there is a vague reference to “irregularities”, and to an “absurdity”. But, there is nothing in the way of proof of these allegations - not even prima facie evidence.

All the applicant tells us is that the papers were not in order.

We are not treated to the courtesy of being told what exactly it is that was allegedly done, and by whom.

We are not provided with evidence that indeed the court proceeded to grant judgment on the unopposed roll when the papers before it clearly showed that it ought not to have done so. We are not told that despite proof that there was a notice of opposition duly filed of record and served on all interested parties, the court erred in overlooking it and proceeded to grant judgment in default.

There is simply no evidence of any error on the part of the court in both instances, whether an error of fact or an error of law.

It is my view that Rule 449(1)(a) does not apply to the circumstances of this case, and, to borrow the phrase in Gondo & Anor v Syfrets Merchant Bank Ltd 1997 (1) ZLR 201;

“…, the judgments in fact reflected the true decision of the court on the basis of the evidence presented.”

It is my considered view that the applicant is not entitled to the relief that he seeks.

In the never-ending quest for justice, litigants are becoming increasingly indefatigable in approaching the well of justice to quench their thirst for justice.

Uppermost in my mind, in considering the merits of the application before me, was a question the answer to which I knew would only be resolved by resorting to that vague and elastic notion – discretion.

The parties before me have made numerous applications and counter-applications, in regards to the same piece of property, Stand 2819 Bluffhill Township, Harare, over a considerable period of time, from 2006 to date.

Surely, there comes a time when justice and fairness demands that both the victor and the vanquished act sensibly and accept that the matter has been conclusively resolved?

I can do no better than other esteemed courts have done before me, in expressing my disquiet at the manner in which proceedings were conducted between these parties in such a protracted way and over such a lengthy period - with no light at the end of the tunnel.

In Grantuilly (Pvt) Ltd & Anor v UDC Ltd 2000 (1) ZLR 361 (SC), the court expressed the view that a judge would be “…, justified, in the exercise of his discretion, in dismissing the application by reason of the inordinate lapse of time. Rule 449 was a procedural step, designed to correct, expeditiously, an obviously wrong judgment or order…,. It is in the interests of justice that there should be relative certainty and finality as soon as possible concerning the scope and effect of court orders. It would be a proper exercise of the court's discretion to rule that, even if the applicant proved that the Rule applied, it could not be heard after the lapse of a reasonable time. The length of time the appellants waited in this case, whatever the explanation, was unreasonable and the application was an abuse of the court's process.”

The court has already found that Rule 449(1)(a) is not applicable to the circumstances of this case.

Even if Rule 449(1)(a) had been applicable to this case, no reasonable or acceptable explanation was given as to why the applicant waited so long to apply to rescind these judgments.

For these reasons, the application is dismissed with costs.

View Appeal
HH677-14 : MAXWELL SIBANDA vs ZAMBE NYIKA/GWASIRA and REGISTRAR OF DEEDS and EVERJOY MEDA
Ruled By: MATANDA-MOYO J

The applicant obtained default judgment against the first respondent in case No. HC12599/11 on 7 March 2012 in the sum of $4,000, delivery of 1,120m3 of sawn timber, or, alternatively, $392,000 together with interest at the prescribed rate plus costs of suit.

The applicant has not executed on the judgment to date.

Initially, the applicant brought this application against the first and second respondents. The third respondent sought to be joined in the matter claiming she had interest therein.

Such joinder was granted.

This is an application for an interdict barring the first respondent from disposing of a certain piece of property, namely, Stand 13552 Salisbury Township of Salisbury Township Lands measuring 1,569m2 held by the first respondent under Deed of Transfer number 5750/94 dated 21 September 1994.

The applicant also seeks an order declaring the above property specially executable in order to satisfy the judgment debt owed to the applicant under case no. HC12599/11.

The applicant also sought costs of suit from the first respondent.

The first respondent opposed the application.

In his opposition, the first respondent sought an order for rescission of judgment in HC case number 12599/11.

The first respondent has failed to meaningfully respond to the present application.

The first respondent seeks to rescind a default judgement via filing of opposition. Such procedure is irregular and not in compliance with the rules of this court.

Rule 63 and Rule 449 of the High Court Rules 1971 deal with applications for rescission of judgment.

Such application will take the format prescribed in Rule 230, that is, must be in Form No.29.

Rule 229A provides for counter applications which are the equivalent of a counter claim in an action matter. It provides:

“(1) Where a respondent files a notice of opposition and opposing affidavit, he may file, together with those documents a counter–application against the applicant in the form, mutatis mutandis, of a court application or a chamber application whichever is appropriate.”

From the above, it follows, therefore, that, a counter relief can be sought against an applicant by a respondent under a separate heading than the notice of opposition and opposing affidavit.

It is a stand-alone claim made against an applicant.

Even if the applicant later withdraws his application, the counter application could be proceeded with.

In the matter in casu, the purported counterclaim by the first respondent is not in terms of the rules of this court and is therefore invalid. The purported counter application for rescission of judgment is therefore improperly before the court and cannot be entertained.

Since the first respondent has not opposed the relief sought by the applicant, the first paragraph of the Order stands unopposed.

This was also confirmed by the counsel for the third respondent.

The only issue which falls for determination is whether I should declare the property in question specially executable.

The third respondent has opposed the granting of the relief sought on the basis that she has an interest in the property.

The third respondent was customarily married to the first respondent and the two have one minor child.

It is common cause that the third respondent and the minor child reside at the property in question. The respondent opposed the attachment of the immovable property on the basis that she owns 50% share of the value therein.

The third respondent relied on a provisional order granted in her favour on 20 March 2001 by ORMERJEE J…, in HC2784/01. The order was granted against the first respondent. The order was in the following;

“PROVISIONAL ORDER TERMS OF ORDER MADE:

That you show cause to this Honourable Court why a final order should not be made in the following terms;

1. That, the first respondent be and is hereby interdicted from selling the matrimonial home, namely, Stand No.13552 Salisbury Township of Salisbury Township lands situated in the District of Salisbury also known as No.48 Don Judson Road, Milton Park, Harare, registered in the name of the first respondent under Deed of Transfer No.5750/9 pending determination in the appropriate court by the applicant of a claim for her share in the matrimonial home and pending the finalisation of that suit.

2. That, alternatively, in the event that the transfer has been done, the first respondent is hereby interdicted from receiving any proceeds from the sale of the property without paying the applicant the sum of $1,000,000 being the applicant's half share of the value of the property or failing agreement thereon pending determination as the applicant's claim in the appropriate.

3. That, second respondent be and is hereby interdicted from transferring or registering the transfer of Stand No 13552…, to any third party pending the finalisation of applicant's claim for a share in the matrimonial property in a, and competent count as stipulated in para1 above.

INTERIM RELIEF GRANTED

That, pending the determination of this matter, the applicant is granted the following relief:

1. The first respondent be and is hereby interdicted from selling the matrimonial home, namely, Stand 13552…, known as No.48 Don Judson Road, Milton Park, Belvedere, Harare…, pending the filing in the appropriate court by the applicant of a claim for her share in the matrimonial home within 7 days of the granting of this order….,.

2. That, the second respondent be and is hereby interdicted from transferring or registering the transfer of Stand 13552…, registered under Deed of Transfer No.5750/94 to any third party pending the finalisation of the applicant's claim for a share in the matrimonial property in a, and by competent court stipulated in para 1 above.

3. That, alternatively, in the event that the transfer has been effected, the first respondent is hereby interdicted from receiving any proceeds from the sale of the property without paying the applicant the sum of $1,000,000 or failing agreement on the value of applicant's share, pending the determination of the applicant's claim in the appropriate court as set out in para 1 above.”

The above provisional order was never confirmed.

I also did not hear the third respondent to be saying she brought a claim for the share of the matrimonial home in compliance with paragraph 1 of the interim order granted. Such action was to be brought within seven (7) days of the Order. Such period has since lapsed.

In any case a provisional order simply grants prima facie rights. A provisional order should be real rights.

What the above order did was to bar the first respondent herein from selling the matrimonial property. Such order did not extend to banning sale by execution.

Counsel for the applicant referred to HERBSTEIN and Van WINSEN, 3ed in Civil Practice of the Superior Courts in South Africa where the author says:

“A judgment creditor is entitled to attach and have sold in execution the property of his debtor notwithstanding that a third party has a personal right against such a debtor to the ownership or possession of such property, which right arose prior to the attachment or even the judgment creditor's cause of action, and of which the judgment creditor had notice when the attachment was made. An attachment in execution creates a judicial mortgage or pignus judiciale.”

Counsel for the applicant argued, that, the third respondent's rights in the immovable property are of a personal nature. She does not have real rights in the property as her name does not appear in the Deed registry as co-owner of the property.

He argued that the third respondent's rights, even if accepted, are not such as to result in a situation where property is excluded from execution.

What are the third respondent's rights in the property?

It is common cause that no competent court of law has declared the rights of the third respondent in the immovable property. The third respondent attempted to rely on the interim order granted above in her favour, in a matter between her and the first respondent.

As I reiterated above, the third respondent has failed to persue the interim relief to finality. It remains a prima facie right.

The third respondent submitted, that, she has been staying in the house together with a son she had with the first respondent. The third respondent wants the applicant to respect her 50% share in the property.

I am of the view, that, the third respondent has personal rights in the property, but, such rights are as against the first respondent. Such rights cannot stop a judgment creditor from selling the property in execution.

BUNNS–WORD J, in ABSA Bank Ltd v Peterson (934/2011) (2012) ZA WCHC 18…, said:

“It is only when the exercise of the mortgage's right (to realise the security) is in bad faith that effect should not be given to the right. An indication of bad faith would be provided if the mortgage seeks to proceed with execution against the defendant's home when it is evident that the judgment debt can probably be satisfied in a reasonable manner without involving the drastic consequences of the loss of the mortgaged home.”

The above can be applied with equal force in this scenario where a judgment creditor intends to execute on a home.

The respondents did not argue that they are capable of settling the debt using other means. The first respondent has not been making payment towards the debt. There is, therefore, no evidence of malice on the part of the judgment creditor that has been placed before me.

I am satisfied that this is a case where execution against the first respondent's property should be ordered.

The first respondent has not shown any intention nor capacity to pay the judgment debt in reasonable instalments. There has been no evidence placed before me that the first respondent has movables which could be executed upon to satisfy the debt. The third respondent has not acted with diligence in protecting her rights in the above property.

As was reiterated in Mavhunduse v UDC Ltd & Ors 2001 (2) ZLR 337 that:

“Until such time as title deeds are issued in respect of Plot 216, and ownership thereof is registered in the Deeds Registry in the name of a particular planter, all that the applicant and the purchaser can acquire are rights and interests in the plot. Such rights are personal to the holder thereof. They are not real rights.”

I am, in the result, satisfied that the applicant has met the rest for the granting of the interdict sought. Accordingly, it is ordered as follows:

(1) That the application for a mandament, restraining the first respondent from disposing or otherwise alienating the immovable property be and is hereby granted.

(2) That the immovable property, known as Stand 13552 Salisbury Township of Salisbury Township lands, held by the first respondent under Deed of Transfer number 5750/94, dated 21 September 1994, be and is hereby declared specially executable.

(3) That the first respondent shall pay costs of suit.

SC19-21 : CHEVHU HOUSING CO-OPERATIVE SOCIETY LIMITED AND OTHERS vs CREST BREEDERS INTERNATIONAL (PVT) LTD AND MINISTER OF LANDS AND RURAL SETTLEMENTS
Ruled By: BHUNU JA, MATHONSI JA and KUDYA AJA

The appellants are nine cooperative societies which have been dishing out residential Stands at a piece of land known as Saturday Retreat Estate (the land) for quite some time. The land is held by the first respondent by Deed of Transfer number 4035/86 and was acquired by the Government of Zimbabwe for urban development by Acquisition of Land Order dated 20 March 2014.

Following the acquisition, the second respondent herein, who is the acquiring authority, filed an application against the first respondent in the Administrative Court (the court a quo) for confirmation of the compulsory acquisition order.

The matter was settled between the parties as a result of which a consent order was issued by the court a quo on 13 January 2015.

The consent order confirmed the compulsory acquisition and made provision for compensation due to the first respondent in terms of the agreement of the parties therein.

Almost five years after the consent order was granted in the matter involving the two respondents, the appellants approached the court a quo seeking a rescission of that judgment in terms of Rule 449 of the High Court of Zimbabwe Rules, 1971.

The basis of the rescission of judgment application was that the judgment was granted either in error or fraudulently in the absence of the appellants.

Before the court a quo, the first respondent raised a number of points in limine, namely;

(i) That the application was filed out of time without seeking condonation for the delay;

(ii) That the appellants lacked locus standi in judicio to seek a rescission of an agreement in which they were not a party; and

(iii) That there was no fraudulent misrepresentation in the grant of the consent order.

By judgment delivered on 6 March 2020, the court a quo upheld the preliminary points. This appeal is against that judgment of the court a quo.

This Court finds that the appeal is completely devoid of merit. It ought to be dismissed with costs.

BACKGROUND

By Government Gazette Extraordinary published on 7 September 2001, a preliminary notice in terms of section 5(1) of the Land Acquisition Act [Chapter 20:10], of the intent to acquire the land for resettlement purposes, was issued.

Subsequent to that, the acquisition for resettlement was not pursued, presumably upon a realisation that the land was earmarked for urban settlement.

Notwithstanding that, the appellants later occupied the land and started parcelling out residential Stands to their members. Their case is that they were offered the land for that purpose by the Government as it was by then State land given that a preliminary notice of intent to acquire the land had been published in 2001.

As I have said, it was not until 20 March 2014 that the Government commenced the process of the lawful compulsory acquisition of the land for urban development.

On that date, the second respondent issued an acquisition of land order. As required by law, the second respondent brought an application before the court a quo, under case number LA6/14, for confirmation of the compulsory acquisition and compensation to the first respondent.

The proceedings in the court a quo led to the signing of a settlement between the first and second respondents, on 18 December 2014, which was incorporated in the consent order sought to be rescinded. The Order reads:

“BY CONSENT IT IS ORDERED THAT:

1. The compulsory acquisition of the immovable property, being the remaining extent of Saturday Retreat Estate situated in the District of Salisbury measuring One Thousand and Fifty Seven comma three eight one (1,057,3810) hectares held under Deed of Transfer 4035/1986 (“the Property”) by the respondent be and is hereby confirmed.

2. The respondent is entitled to full compensation for the compulsory acquisition of its urban land.

3. The manner of compensation shall be as set out in the Memorandum of Agreement entered into between the Government of Zimbabwe and the respondent, dated 18 December 2014, a copy of which is annexed to this order as Annexure A.

3.1 The respondent be and is hereby allocated the unoccupied portion of the property measuring 401 hectares.

3.2 The respondent is hereby appointed the sole and exclusive developer of the property defined in the Deed of Settlement measuring 401 hectares.

3.3 The terms and conditions of such appointment shall be governed by the Agreement entered into between Government of Zimbabwe, represented by the Ministry of Local Government and Urban Development, and the respondent, a copy of which is annexed to this order as Annexure A.

4. The Government of Zimbabwe shall sign all such documents, pass all such instruments, give such instructions, and do all things necessary to give effect to this Court order.

5. There shall be no order as to costs.”

Following the consent order, the Deed of Transfer, in terms of which the first respondent held the land, was endorsed on 18 December 2015 to the effect that it now vests in the President.

It is common cause that the appellants became aware of the grant of the court order sought to be rescinded as far back as 2015. The application for rescission of judgement was only filed on 13 December 2019, about 4 years later, without seeking condonation.

PROCEEDINGS A QUO

Before the court a quo, the appellants' case was that the court a quo was misled into granting the consent order and therefore granted the order in error.

The error was in the sense that the first respondent was not the owner of the land in question, it having been acquired by the Government in 2001, and, following such acquisition, it was allocated to the appellants.

Further, the appellants have an interest in the land and had to be consulted before the consent order was granted.

In addition, the appellants contended that the consent order was fraudulently obtained in the sense that the first respondent fraudulently misrepresented to the second respondent, and the court, that, it had entered into agreements with them in terms of which the occupants agreed to pay $4 per square metre of land occupied by them. According to the appellants no such agreements were entered into.

The first respondent's case before the court a quo was that the application for rescission of judgment was filed out of time without seeking condonation at the time they had become aware of the consent order and had thus been complicit for years.

Further, the first respondent took the view that the appellants did not have locus standi to contest an agreement entered into in settlement of an application for confirmation of compulsory acquisition of urban land and compensation thereof.

As they lay a claim through the Government, the appellants could not possibly be cited in proceedings brought in the process of acquisition.

Regarding the agreement relating to payment for the land occupied by the appellants' members, the first respondent insisted that indeed it had agreements with individual occupiers. The appellants had been in illegal occupation of the land which was only lawfully acquired in 2014. The first respondent maintained that it had separate arrangements with some of the occupiers who are paying for the land directly to it.

FINDINGS A QUO

The court a quo found that the delay of almost 5 years in bringing the application was too long, and, as such, condonation should have been sought giving an acceptable explanation for failure to act expeditiously.

It found, further, that there was need for relative certainty and finality in litigation.

On the aspect of the alleged fraudulent misrepresentation to obtain the consent order, the court a quo found that none had been proved in court.

Regarding the appellants' locus standi, it was the court a quo's finding that none of the appellants were privy to the agreement entered into between the first and second respondents. As such, they had no legal standing to seek a rescission of an agreement they were not party to.

As I have already stated, the court a quo upheld the points in limine.

THE APPEAL

The appellants were aggrieved by the judgment of the court a quo and noted an appeal to this Court on four grounds of appeal. They are:

1. The learned judge a quo erred at law in failure to dispose of the first point in limine by the first respondent.

2. The learned judge a quo erred at law in holding that the appellants lacked locus standi to apply for rescission of the judgment granted by the court on 13 January 2015.

3. The Honourable Court erred at law, in so far as it may be taken to have upheld the first point in limine, in holding that there was need for the appellants to apply for condonation of the late noting of the application for rescission and that the appellant failed to prove fraud.

4. The honourable lower court erred at law in allowing a judgment obtained through fraudulent means to stand.

The grounds of appeal are inelegantly crafted, they are repetitive and lack clarity and conciseness required by the Rules.

Be that as it may, only two issues for determination on appeal arise from them. They are:

1. Whether there was a need for the appellants to seek condonation before filing the rescission of judgment application in terms of Rule 449 of the High Court Rules....,.

WHETHER CONDONATION SHOULD HAVE BEEN SOUGHT

Counsel for the appellants submitted that the judgment of the court a quo is not clear whether condonation was necessary or not.

He submitted that Rule 449 does not fix any timeframe for bringing the application. To that extent, there was no need to seek condonation as it could not be said that the application was out of time.

Per contra, counsel for the first respondent submitted that the mere fact that Rule 449 contains no time frame for the filing of an application made under it is not a licence for bringing the application anytime without seeking condonation.

I agree.

There appears to exist a misconception among legal practitioners that Rule 449 provides a gas station for all those who have failed to act timeously to re-fuel and breathe life into a cause that has run its course.

It was never the intention of the framers of the Rules that there must exist a remedy for eternity.

The policy of the law is that there should be legal certainty and finality in the relationship of parties after the lapse of a certain period of time. It is for that reason that society is intolerant to stale claims, generally, as a result of which a party that fails to enforce a right timeously, or within a reasonable time, loses the right altogether: see Ndebele v Ncube 1992 (1) ZLR 288 (S)…,.; John Conrad Trust v The Federation of Kushanda Pre-Schools Trust & Ors HH503-15…,.

It ought to be appreciated that Rule 449 provides for discretionary relief to be granted or refused in the exercise of discretion by a judge or court.

The case of Grantully (Pvt) Ltd & Anor v UDC Ltd 2000 (1) ZLR 361 (S) is authority for the proposition that the court may, in the exercise of its discretion, dismiss an application made in terms of Rule 449 by reason of the inordinate delay in bringing it. At pp365H-366D this Court said:

“Even if the learned judge was wrong in deciding that the judgment granted by MTAMBANENGWE J was not erroneously sought or obtained, I consider that he was justified, in the exercise of his discretion, in dismissing the application by reason of the inordinate lapse of time. After all, Rule 449 is 'a procedural step designed to correct, expeditiously, an obviously wrong judgment or order': per ERASMUS J in Bakoven's case supra at 471E-F: see also Firestone South Africa (Pty) Ltd v Genticuro AG supra at 306H.

In First National Bank of Southern Africa Ltd v Van Rensburg NO & Ors; In re First National Bank of Southern Africa Ltd v Jurgens & Ors 1994 (1) SA 677 (T) ELOFF JP (with whom VAN DER WALT and PREISS JJ concurred) stressed the important need to proceed rapidly in applications of this nature. He said at 681E-G:

'It is in the interest of justice that there should be relative certainty and finality as soon as possible concerning the scope and effect of orders of court.

Persons affected by such orders should be entitled, within a reasonable time after the issue thereof, to know that the last word has been spoken on the subject.

The power created by Rule 42(1) is discretionary (see Tshivhase Royal Council & Anor v Tshivhase & Anor, Tshivhase & Anor v Tshivhase & Anor 1992 (4) SA 852(A) at 862 in fine – 863A) and it would be a proper exercise of that discretion to say that, even if the appellant proved that Rule 42(1) applied, it should not be heard to complain after the lapse of a reasonable time. A reasonable time in this case is substantially less than the three years referred to.'

I respectfully agree with these observations.”…,.

In my view, Rule 449 is not an open cheque to bring an application for rescission, even where it applies, at any time in the life of a person.

It is an expeditious remedy which should be deployed rapidly the moment the party seeking to rely on it becomes aware of the existence of the order.

Where, for some reason, the application is not so made, an acceptable explanation must be rendered for failure to act timeously. Such an explanation can only be made in an application for condonation.

The court a quo cannot be faulted for upholding that preliminary point.

SC22-21 : STONEWELL SEARCHES (PVT) LTD vs STONE HOLDINGS (PVT) LTD and MUTOKO CONSORTIUM and MOSES CHINHENGO N.O.
Ruled By: GUVAVA JA, UCHENA JA and MAKONI JA

It is a salutary principle of law that there should be finality in litigation: see Ndebele v Ncube 1992 (1) ZLR 288 (S)…,.

HH261-16 : KARNEC INVESTMENTS (PRIVATE) LIMITED and ROBERT STRONG vs ECONET WIRELESS (PRIVATE) LIMITED
Ruled By: TSANGA J

This is an opposed application in which the applicants seek that the respondent, Econet Wireless (Private) Limited (“Econet”), be fined for contempt of a court of an order granted on 4 February 2011 by consent of both parties.

In terms of the order that was granted, Econet was to desist forthwith from carrying out building operations on its property. The property is located in a certain upmarket neighbourhood in the suburb of Highlands.

The applicants' residential home is directly opposite a property owned by Econet.

The allegations that gave rise to the court order granted on 4 February 2011 were that at the time, starting in November 2010, Econet was carrying out building operations without complying with the Regional Town and Country Planning Act [Chapter 29:12].

The acts complained of included the level of noise on a daily basis arising from the said operations and the intensity of building operations both inside and outside the house. The operations were said to have caused a heightened nuisance and a danger to the public as the road was narrow and heavy vehicles were blocking the road. The entrance that had been created, from knocking down a wall, was said, at the time, to have facilitated the movement of earth moving equipment, construction equipment and materials, 30 ton trucks, and large dumper trucks. Hundreds of tonnes of building materials were also said to have been delivered.

Econet also owned another adjacent property nearby where it was carrying out legitimate renovations.

An urgent application had been filed and an order had been granted, by consent, at the time. It was worded as follows:

“1. That 1st Respondent (having been Econet in that case) concedes that building operations/ developments were being conducted at 75 Orange Grove Drive, Highlands.

2. That the new entrance on 75 Orange Grove Drive, Highlands shall be sealed off within 7 days of this order.

3. That building operations/developments shall cease at 75 Orange Grove Drive, within 7 days of this order.

4. That within the 7 days period all traffic shall be managed by the 1st Respondent who shall ensure that all motorists are given adequate warning.

5. That the 1st respondent shall pay applicants costs on an attorney client scale.”

This order was complied with forthwith as Econet stopped its activities and the case was closed with payment of costs for the infractions.

However, more than three years following the granting of the above order, Econet again knocked the wall to create an entrance for the delivery of a generator.

It is the applicants' allegation, that, on 20 December 2014, the second applicant, Mr Robert Strong, observed that an entrance to the perimeter wall had been made.

This was the same entrance that had been ordered by the court to be closed in 2011.

On the same date, he observed that a freightliner truck delivered a massive generator. Through direct inspection of the premises, Mr Strong averred that he observed that there had been substantial developments on the premises which included a concrete slab and an oil soak away for the generator.

From this, he concluded that Econet was in fact carrying out commercial and industrial operations on the premises, contrary to the Regional Town and Country Planning Act and in violation of the Pockets Hill residential zoning.

The actions were said to be in violation of the court order as Econet should not have been carrying out any building operations.

It is these acts that have led the applicants to approach this court seeking that Econet be charged with contempt of a valid court order in that, once again, these developments were taking place without the requisite statutory authority.

The applicants, through their counsel…, stressed that the onus of proving that the contempt was not wilful and mala fide is on the respondent: John Strong (Pvt) Ltd & Anor v William Wachenuka (1) 2010 (1) ZLR 151.

Her interpretation of the court order, on behalf of the applicants, was that the entrance was to remain sealed off and that no building operations could take place on the premises whilst the order remained in force. She interpreted the order as referring to building operations in general. She stated that the order could not be read to imply that fresh building operations could resume at some future date. She insisted that what was being carried out were building operations as the wall which was knocked down was a structure and would need to be rebuilt. She also argued that slab for the generator is a structure normally undertaken by a builder.

The operations were also said to fall foul of the Regional Town and Country Planning Act in that they change the use of the building from residential to commercial/industrial.

Econet, through its legal counsel…, vehemently denied that it was in violation of the court order and maintained that it could not be in contempt as it complied with all aspects of the order in 2011 and the matter was closed.

If there had been violation, he said, the application would no doubt have been filed sooner.

Moreover, he maintained that the order did not interdict Econet from installing a basic necessity, such as a generator, which they regard as essential given the electricity situation in the country. He argued that a generator is a necessity and insisted that all activities complained were consistent with the purchase, supply, and installation of the said generator.

Moreover, he emphasised that there is no law which prescribes the maximum capacity of generators that individuals can purchase and utilise.

Since the generator was not on the property in 2011, his position was that it was never part of the order.

He also insisted, that, if so inclined to pursue legal action, then, the applicants ought to have approached this court by way of a fresh application rather than seek to enforce an order that was fully complied within the context of the facts that had given rise to its quest at the time.

As regards the soak away, he argued that no evidence was placed before the court that this was a recent development.

He asserted that the application was merely meant to frustrate Econet because the applicants were miffed at the occupation of the property by a company.

Counsel for the respondent maintained that the order was complied with and fell away.

The gist of his legal argument was that where the order has been served, and non-compliance is alleged, the onus is on the applicant to show wilfulness or mala-fides beyond a reasonable doubt: Ex Parte Mushambi 1989 (2) ZLR 191 (HC); Consolidated Fish Distributors (Pty) Ltd v Zive & Ors 1968 (2) SA 517…,.; Fakie NO v CCII Systems (Pty) Ltd 2006 (4) SA 326 (SCA); Gold v Gold 1975 (4) SA 237 D…,.

He argued that the meaning of the order must be sought from the four corners of the order itself: Firestone South Africa (Pty) Ltd v Genticuro AG 1977 (4) SA 298 (A)…,.

He also argued, that, to the extent that the respondent flouted the Regional Town and Country Planning Act, by not obtaining the necessary permit, then section 27 of the Regional, Town and Country Planning Act [Chapter 29:12] allows regularisation of any such development. Reliance was placed on the case of Bruce v Econet Wireless (Pvt) HH52-09 for this assertion.

Drawing on the case of Nzara & Ors v Kashumba and Ors HH151-16 he also argued that the judgment became superannuated after three years, meaning that the judgement became too old to use after three years expired and would need to be revived.

However, the applicant's response to this argument was that Order 40 Rule 324 applies to superannuated judgments in respect of execution.

In essence, the Rule provides that no writ of execution may be issued after the judgment has become superannuated unless the judgment has been revived.

Counsel for the applicants challenged the claim that the applicants should have made a fresh application as the basis of the consent order was to ensure that Econet complied with the Regional Town and Country Planning Act, yet, the operations were carried out without a permit.

She argued that installing an industrial generator and construction of an industrial septic tank is a violation of Part V of the Regional, Town and Country Planning Act.

The Legal Position on Contempt of Court

In terms of section 3 of our Constitution, Amendment (No.20) Act 2013, one of the founding values and principles upon which Zimbabwe is founded is respect for the rule of law (see section 3(1)(b) of the Constitution in particular).

If the court's authority is not respected there can be no fostering of respect for the rule of law.

Furthermore, in terms of section 164(3) of the Constitution, an order of a court binds the State and all persons and governmental institutions and agencies to which it applies and must be obeyed by them.

Contempt of court has clear bearings on legal proceedings in that if it is not addressed, the jurisdictional power of the courts would be illusionary. It is regarded as an act of disrespect and insult to the court and an obstruction to justice.

Contempt can take place inside or outside the court.

In the case of Nthabiseng Pheko & Ors v Ekurhuleni Metropolitan Municipality [2015] ZACC 10 contempt of court was explained as follows:

“Contempt of court is understood as the commission of any act or statement that displays disrespect for the authority of and officers acting in an official capacity. This includes acts of contumacy in both senses: wilful disobedience and resistance to lawful court orders….,. Wilful disobedience of an order made in civil proceedings is both contemptuous and a criminal offence. The object of contempt proceedings is to impose a penalty that will vindicate the court's honour, consequent upon the disregard of its previous orders as well as to compel performance in accordance with the previous order.”

Central to contempt is not only the disobedience to a court order but also contumacious or stubborn and wilful disrespect for authority.

Econet's counsel placed heavy reliance on the South African case of Fakie NO v CCII Systems (Pty) Ltd 2006 (4) SA 326 (SCA) in his argument that the standard of proof in contempt cases must now be beyond a shadow of doubt.

Materially, what was sought in Fakie NO v CCII Systems (Pty) Ltd 2006 (4) SA 326 (SCA) was committal to prison arising from the alleged contempt. It was in that context that it was laid down, in that case, that, an applicant for committal for contempt is required to prove all elements of contempt beyond a reasonable doubt so as to accord with constitutional protections availed accused persons.

However, it was highlighted that the respondent in such proceedings is “not an accused person but is entitled to analogous protections as are appropriate in motion proceedings.”

It was further explained, in that case, that, the applicant is not required to lead evidence on the respondent's state of mind.

Therefore, once an applicant in contempt proceedings proves three requisites, namely; the existence of the order; its service or notice; and non-compliance; it is the respondent who then leads evidence as to whether the non-compliance was wilful or mala fide. The respondent need only adduce evidence that establishes a reasonable doubt.

The parameters of contempt of court were summed up in Fakie NO v CCII Systems (Pty) Ltd 2006 (4) SA 326 (SCA)…, as follows:

“(a)…,.

(b)…,.

(c) In particular, the applicant must prove the requisites of contempt (the order; service or notice; non-compliance; and wilfulness and malafides) beyond a reasonable doubt.

(d) But once the applicant has proved the order; service or notice; and non compliance; the respondent bears an evidential burden in relation to wilfulness and mala fides. Should the respondent fail to advance evidence that establishes a reasonable doubt as to whether non-compliance was wilful and mala fide, contempt will have been established beyond a shadow of doubt…,.

(e)…,.”

Whether contempt has been committed or not is largely a question of fact, given that, contextually, not every act of disobedience of a court order amounts to civil contempt. Whilst a fine may be merited in some cases, in others, a rebuke or a warning may suffice given the circumstances of the case.

That there was an order of the court is not in doubt. That it was served and the respondent was also fully aware of it is equally not in dispute. The issue is whether, for decision in so far as the onus is on the applicant, is whether or not that order was complied with.

Given that the essence of bringing contempt of court proceedings is to induce compliance with a previous order, and that the court grants enforcement to foster obedience to a court order (Fakie NO v CCII Systems (Pty) Ltd 2006 (4) SA 326 (SCA)…,.), I do not think that the facts before me show that there was disobedience with the order granted by the court.

It is far from being alleged that any of the acts that gave rise to the complaint in 2011 continued unabated in the face of the court order.

I agree fully, that, if that had indeed been the case, given the wording of the court order, any contempt of that order would have been brought to the notice of the court at that time.

The entrance was sealed; the building operations did cease; and Econet managed all traffic as per the court order. It also paid costs. In other words, Econet was in full compliance with that court order in light of the facts to which the order related to. It was a readily enforceable agreement which was couched in a manner which gave finality to the dispute as much of the action was to be done within a specified period.

I am therefore also in agreement with Econet's counsel that what is complained of in this matter, more than three years later, arises from an entirely new set of facts which must, of necessity, be examined in context.

The breaking down of the wall, in the same spot as the previous one, cannot, in itself, be used as an indicator of disobedience and should not be looked at in isolation of the facts that gave rise for the need. The applicants themselves are clear that what they observed being delivered through the created entrance was a generator. An inspection by the second applicant of the premises also showed that a platform had been put in place for the mounting of the generator.

There are no allegations that besides this purpose the entrance was now being used for the very same operations that had led to the granting of the court order.

Having found that the order was complied with, and that the complaint before me is a new cause of action, there is no need, in my view, in this instance, to also delve into the superannuation argument and the import of Rule 324 in this instance which the respondent also sought to rely on.

In my view, the applicants have failed to discharge the onus of showing that this order was not complied with.

But, even if my conclusion is erroneous that the order was complied, and even if the evidential burden shifts to Econet, as respondent, to show that it did not act wilfully and with mala fides, I am of the view that the respondent succeeds in raising a reasonable doubt, which is all that is required of it, that its actions were not wilful or mala fide.

The respondent clearly highlighted that the major purpose of knocking down the wall was because the vehicle delivering the type of generator could not fit through its normal entrance.

It is not an unusual occurrence to have a household item delivered where his vehicle may not fit through the standard gate.

In the absence of clear proof that the respondent was motivated by disrespect for authority, the respondent's explanation succeeds, that it genuinely did not believe that it was acting in violation of the court order.

There was also no legal argument placed before this court that the type of generator in question is forbidden in residential areas.

It is common knowledge that in light of the electricity shortages that have faced this country for more than fifteen years now, individuals and companies have had to find ways of obtaining their own electricity. Installing generators has become one of the common solutions, in addition to solar panels and invertors.

The size of generator is dependent on the use to which the generator is to be put.

Others are designed for heavy duty needs which include not only lighting but running cookers, geysers, boreholes, among other requirements, while some provide basic power for lights and plugs.

It is the needs to which the generator is to be put that determines its size.

The applicants seem to allege that its mere size denotes that the premises are being used for commercial purposes.

No evidence of this was placed before the court other than the applicants say so.

While naturally, in light of the previous facts that had necessitated the obtainment of the court order by consent, the applicants may have had justifiable reason to panic at observing an opening and seeing a huge delivery truck, the circumstances that had necessitated opening the wall had been fully explained to them. The explanation had been reasonable. In the absence of any other evidence that Econet intended to wilfully resume operations without a court order, and that it has indeed done so, that should have been the end of the matter.

If indeed the slab constructed for the generator does need town planning authority, then Econet should rectify this by using section 27 of the Regional Town and Country Planning Act as they have already asserted.

Overall, this application lacks merit and there is no reason why costs should not follow the result.

In the result, this court makes the following order:

1. The application be and is hereby dismissed.

2. Applicants are ordered to pay the costs of suit.

HH272-22 : SLASHWOOD MINING (PVT) LTD and ZENIT GROUP LIMITED vs ONTAGE RESOURCES (PVT) LTD
Ruled By: ZHOU J

This is an application for the revival of an order by consent that was granted in Case Number HC13123/12 and for costs of suit.

The order in question was granted on 5 December 2012.

The application is opposed by the respondent.

The background facts to this application are as follows:

On 5 December 2012, this court granted an order pursuant to an application instituted by the respondent herein under Case Number HC13123/12. The applicants herein are the respondents in that case. The order granted incorporated the terms of a Deed of Settlement which had been signed by the parties on 19 November 2012. The applicant's case is that the order granted in HC13123/12 has superannuated and therefore must be revived by order of this court.

The respondent opposes the application on the following grounds:

(a) That the provision pertaining to superannuation of judgements and their revival was repealed, which means that the application is unnecessary;...,.

On the merits, the respondent's contention is that following the repeal of Rule 448 of the now repealed High Court Rules, 1971, superannuation of judgments no longer applies, hence the application in casu is unnecessary.

This issue has been resolved by this court in the case of Nzara and Others v Kashumba NO & Others HH151-16 where it was held that the repeal of the Rule simply meant that the common law relating to superannuation of judgments now applies. The court pointed to the continued existence of Rule 324 of the 1971 Rules.

Significantly, the same provision has been maintained under Rule 69(3) of the High Court Rules, 2021.

This provision merely restates the common law position with respect to superannuation of judgments.

In the heads of argument, and at the hearing of the application, counsel for the respondent advanced the argument that superannuation applies only to those judgments that are enforceable through a writ of execution. Put differently, the submission was that since the judgement which is being sought to be revived is not one that is enforceable by writ of execution, such a judgment is not covered by Rule 69(3) of the High Court Rules 2021, which was Rule 324 of the now repealed rules of court.

It is common cause that the judgment in casu is not sounding in money, hence it is not enforceable by writ of execution.

The issue of the ambit of the rule relating to revival of superannuated judgments was dealt with by this court in Nzara and Others v Kashumba NO & Others HH151-16…, in which, after an examination of the rule in question MAFUSIRE J said:

“In my view, the superannuation rule may not apply to all judgments carte blanche.”

This reasoning applies to the present case because the judgment in question is not one which is enforceable by writ of execution.

On this ground, I would dismiss the application....,.

1. The application be and is hereby dismissed.

2. First applicant shall pay the costs of suit.

View Appeal
SC18-18 : SHORAI NZARA and AAROLA IDEHEN and AMOSOGE IDEHEN and OSARETIN IDEHEN vs CECILIA KASHUMBA N.O. and REGISTRAR OF DEEDS and MASTER OF THE HIGH COURT and TAFIRENYIKA KAMBARAMI
Ruled By: GARWE JA, GUVAVA JA and UCHENA JA

This is an appeal against part of the judgment of the High Court Harare.The first appellant, Shorai Nzara (Shorai), is the mother of the second to fourth appellants to whom she donated the property that forms the subject of this dispute.The first respondent, Cecilia Kashumba N.O. was the wife of ...

This is an appeal against part of the judgment of the High Court Harare.

The first appellant, Shorai Nzara (Shorai), is the mother of the second to fourth appellants to whom she donated the property that forms the subject of this dispute.

The first respondent, Cecilia Kashumba N.O. was the wife of the late Dzingai Kashumba and is the executrix dative of his estate.

Dzingai Kashumba (Dzingai) entered into an agreement of sale with Shorai Nzara, the original owner of the property at the heart of this seventeen-year-old dispute.

The second respondent is the Registrar of Deeds, who was cited in his official capacity as the official who registers title of immovable properties.

The third respondent is the Master of the High Court, cited in his official capacity as the official who exercises oversight over deceased estates.

The fourth respondent, Tafirenyika Kambarami, bought a sub-division of the land in question from Cecilia Kashumba, in her capacity as the late Dzingai Kashumba's estate executrix dative.

The detailed facts of the case are as follows:

On 12 May 1999, the first appellant, Shorai Nzara (Shorai), entered into an agreement of sale with the now late Dzingai Kashumba (Dzingai) for the sale of two proposed Stands - being Stand number 552 and 553 Quinington Township of Subdivision “A” of Sub-division “F” of Quinington of Borrowdale Estate.

At the time the parties entered into the agreement, the two Stands constituted one property for which a subdivision permit had been granted by the City of Harare.

Shorai Nzara instituted application proceedings for the cancellation of the agreement of sale, under case number HC10065/00. She claimed that Dzingai Kashumba had breached the agreement of sale, as he had not paid the full purchase price.

The court (per BARTLETT J) accepted that Dzingai Kashumba had not paid the full purchase price, but, held that the first appellant had not lawfully cancelled the agreement as she had not given Dzingai the mandatory 30 days notice in terms of section 8(2)(c)(ii) of the Contractual Penalties Act [Chapter 8:04].

In terms of section 8(2)(c)(ii) of the Contractual Penalties Act, a purchaser is entitled to a notice period of 30 days within which to pay the purchase price before the contract can be cancelled.

BARTLETT J ordered Dzingai Kashumba to pay the outstanding amount within 30 days failing which the contract could be lawfully cancelled.

That judgment was handed down on 9 May 2001.

Shorai Nzara alleges that Dzingai Kashumba, thereafter, attempted to pay the outstanding purchase price through her legal practitioners - but over fifty days later, on 5 July 2001.

Apart from the payment having been made out of time, she claimed that he did not tender the outstanding balance in full. She contended, that, the amount paid was ZW$166,403=25 less than was due and her legal practitioners therefore refused to accept the payment.

In view of the above mentioned breaches by the late Dzingai Kashumba, Shorai Nzara, again, cancelled the agreement and made another application seeking confirmation of the subsequent cancellation.

The first respondent argued, that, payment had been made by cheque to Shorai Nzara's legal practitioners who presented it to his bank for payment. She alleged that his account was debited to the value of that cheque, indicating acceptance of the payment.

The first appellant disputed this, alleging that the cheque through which the late payment was attempted, was returned to Dzingai Kashumba's legal practitioners.

The dispute over the outstanding balance was referred to arbitration where an award was made confirming, that, the purchase price had not been settled and that there remained an outstanding balance.

By letter dated 4 June 2002, the appellant's legal practitioners, again, advised Dzingai Kashumba's legal practitioners that the contract had been cancelled.

The first respondent conceded, that, this position was made clear to Dzingai Kashumba but contented that the cheque he presented to Shorai Nzara's legal practitioners was presented to his bank and debited from his account.

She did not, however, dispute that the amount held by the arbitrator to have been outstanding had not been paid.

Shorai Nzara alleged, that, there was no response to her letter of 4 June 2002 till 10 July 2002 when Dzingai Kashumba purported to pay the outstanding balance.

On 12 July 2002, her legal practitioners wrote another letter to Dzingai Kashumba's legal practitioners stressing, that, the contract had been cancelled and enclosing a cheque for ZW$454,037=93 being the money the respondent had tendered in his attempt to pay part of the outstanding balance.

Shorai Nzara alleges, that, notwithstanding the cancellation of the contract, Dzingai Kashumba made an application, in November 2002, for condonation of his non-compliance with the order of 9 May 2001 but did not pursue it.

It was dismissed for want of prosecution in February 2003.

It was contended on behalf of the late Dzingai Kashumba's estate, that, the application was not an application for condonation per se, but, an application for reversal of the donation made by Shorai Nzara to her children who are the second to fourth appellants, which it is alleged was in clear violation of the order of the High Court granted by HLATSHWAYO J…, against the alienation of the property.

That order was to remain in force “pending the finalization of the Arbitration proceedings” which were finalised on 28 February 2002.

Shorai Nzara's donation to the second to fourth appellants was effected on 31 January 2003, long after the arbitration proceedings had been finalized.

The transfer was registered in the Deeds Registry and reflected on the title deeds in the second, third, and fourth appellants names.

On 9 May 2003, Dzingai Kashumba, through his legal practitioners, filed an application for condonation of his failure to comply with the judgment of BARTLETT J, which Shorai Nzara opposed.

He subsequently withdrew it when he changed legal practitioners.

The new legal practitioners filed another application for condonation for non-compliance with the order of 9 May 2001 in which Dzingai Kashumba argued that Shorai Nzara had no locus standi in the matter as she had donated her interest in the property to the second to fourth appellants.

In that application, Dzingai Kashumba argued that the full purchase price, except the interest, had been paid by August 2000.

He therefore admitted that he had not paid the accrued interest.

He maintained that the purported cancellation was a nullity at law. He disputed Shorai Nzara's right to cancel the agreement.

Dzingai Kashumba argued, that, the matter only went for arbitration to clarify the issue of the outstanding interest.

On 3 May 2006, while the dispute was still raging, the property was unlawfully transferred from the second to fourth appellants to Dzingai Kashumba.

Dzingai Kashumba died on 30 April 2007.

Cecilia Kashumba, his surviving spouse, was appointed executrix dative of his estate, substituting him as the first respondent.

She entered into an agreement of sale with the fourth respondent, Tafirenyika Kambarami, for the sale of one of the contentious properties which the court a quo held to be unlawful.

Shorai Nzara contested this development as an act of fraud, theft, and misrepresentation to the office of the Registrar of Deeds. She claimed that she was unaware of the change of ownership from her children to the late Dzingai Kashumba.

In response to the unlawful transfers, the appellants registered caveats against the properties.

Shorai Nzara pursued her application in the High Court, for the confirmation of the subsequent cancellation of the agreement between her and Dzingai Kashumba, which would, in turn, cancel Deeds of Transfer number 3030/06 and 3031/06 which Dzingai unlawfully obtained from Shorai at a time when the property had already been transferred to her children, the second to fourth appellants.

The transfer was therefore purportedly from the first appellant, who no longer had title, without the involvement of the second to the fourth appellants who now had title.

In her evidence to the court a quo, Cecilia Kashumba alleged, that, contrary to the repeated promises of a refund, the money debited from Dzingai Kashumba's bank account was never returned.

In heads of argument prepared on behalf of Shorai Nzara in the court a quo, it was suggested that Dzingai Kashumba took ownership of the property sometime in 2006, without her knowledge. The court a quo correctly found, that, the judgment of 9 May 2001 had not been complied with, when it was relied on to get transfer from the second to fourth appellants, who were not parties to that judgment, to Dzingai Kashumba.

Dzingai Kashumba failed to pay the balance of the purchase price within the time ordered by BARTLETT J, leading to the cancellation of the agreement by the first appellant.

In spite of the caveats registered by Shorai Nzara, and, subsequently, by the second to fourth appellants, against the title deeds of Stand 553, title was passed to Tafirenyika Kambarami (Kambarami) by Cecilia Kashumba, in her capacity as the executrix dative of Dzingai Kashumba's estate.

These are the facts on which the court a quo made the following decisions:

1. That, the transfer of the two Stands to the late Dzingai Kashumba was unlawful.

2. That, the late Dzingai Kashumba, and his estate, did not pay the full purchase price.

3. That, the donation of the two Stands by the first appellant to the second, third, and fourth appellants was lawful.

4. That, the sale of Stand 553 to the fourth respondent was unlawful.

After making these findings, the court a quo surprisingly gave Cecilia Kashumba a grace period of thirty days within which to settle the outstanding debt.

Dzingai Kashumba's estate and Tafirenyika Kambarami (Kambarami), the fourth respondent, were allowed to remain in possession of the two properties during the grace period. The order further provided, that, if Cecilia Kashumba failed to pay by the deadline, the property would be returned to the appellants and all monies paid to date would be forfeited by the deceased estate.

The appellants appealed to this court against the decision of the court a quo. The appeal is based on the following grounds of appeal:

1. Having come to the conclusion that first and fourth respondents had obtained title irregularly and without lawful cause, the court a quo erred in not finding that the requisites for an action rei vindication had been met.

2. Having come to the conclusion, that, the first appellant had been entitled to donate the property to the second to fourth appellants, and had in fact done so, the court a quo erred in granting consequential relief which completely ignored the rights of the true owners of the property.

3. The court a quo erred in granting relief which had not been sought from it and which the parties had not addressed their argument to, and, so erred in adopting a course which is incapable of resolving the dispute between the parties.

4. The court a quo erred in coming to the conclusion, that, the agreement between the first appellant and the late Dzingai Kashumba had not been validly cancelled and erred in ignoring an ex nunc cancellation of 4 June 2002.

This appeal raises two issues:

1. Whether or not a court can grant an order not sought by the parties.

2. Whether or not the law calls for the strict application of the rei vindicatio?

I will address each issue in turn.

1. Whether or not a court can grant an order not sought by the parties

Counsel for the appellants, citing authorities, which will be analysed below, submitted that the court a quo erred and misdirected itself when it granted relief which had not been sought by either party.

Counsel for the first respondent and counsel for the fourth respondent supported the court a quo's decision without legally establishing the court a quo's authority to grant orders not sought by the parties.

The fact that the court a quo granted orders not sought by the parties can be demonstrated by comparing the orders sought by the parties and the orders granted by the court a quo.

In terms of their application, and the subsequent notice of amendment, the appellants, who were the applicants in the court a quo, sought the following relief:

“1. Deed of Transfer No.3030/06 held in the name of Dzingai Kashumba be and is hereby cancelled and title in respect of the remainder of Subdivision 'A' of Subdivision 'F' of Quinington of Borrowdale Estate should revert back to the second, third, and fourth Applicants.

2. Deed of Transfer No.773/2011 in the name of Tafirenyika Kambarami be and is hereby cancelled and title in respect of Stand 553 Quinington Township of Subdivision A of Subdivision F of Quinington of Borrowdale Estate reverts back to second, third, and fourth Applicants.”

Through her opposing affidavit, Cecilia Kashumba merely sought the dismissal of the applicants application.

The fourth respondent, in his opposing affidavit, also merely sought that the applicants application be dismissed with costs.

In the determination of the application before it, the court a quo made the following orders:

“1. It is hereby declared as follows:

1.1 That, the Deed of Sale between the first applicant and the Late Dzingai Kashumba (hereinafter referred to as 'the deceased') on 11 and 12 May 1999 in respect of the property described as Stands 552 and 553 Quinington Township of Subdivision A of Subdivision F of Borrowdale Estate, measuring 3,999 square metres and 4,002 square metres respectively (hereinafter referred to as 'the original property') was never cancelled.

1.2 That, the balance of the purchase price due and owing by the deceased to the first applicant, as at 9 May 2001, in respect of the Deed of Sale aforesaid, was never paid.

1.3 That, the transfer of 3 May 2006 in favour of the deceased of the two properties known as certain pieces of land situate in the District of Salisbury, respectively, called Stands 552 and 553 Quinington Township of Subdivision A of Subdivision F of Quinington of Borrowdale Estate, respectively, on Deeds of Transfer Nos.3030/2006 and 3031/2006 (hereinafter referred to as 'Stands 552 and 553 Quinington Township') was unlawful and therefore invalid.

1.4 That, the subsequent transfer of Stand 553 Quinington Township on Deed of Transfer No. 773/2011 on 17 February 2011 in favour of Tafirenyika Kambarami, was unlawful and therefore invalid.

1.5 That, the balance of the purchase price outstanding, due and owing by the deceased to the first applicant, as at 9 May 2001, in respect of the sale and purchase of the original property, was in the sum of ZW$503,573=02, being the total of ZW$337,178=77 reflected on the deceased's cheque, subsequently rejected by the first applicant, and ZW$166,394=25 subsequently found by the arbitrator to have been the shortfall on the cheque amount aforesaid.

1.6 Notwithstanding the declaration of invalidity of the transfers referred to in paragraph 1 above, but subject to paragraphs 3, 4, 5 and 6 below, if the first respondent pays, or causes to be paid, to the applicants, or one or other of them, the one receiving payment, the others to be bound, the equivalent of the balance of the purchase price referred to in paragraph 1.5 above in the functional currency current at the time of payment, together with interest thereon as envisaged herein, then, the title deeds in respect to which the transfers aforesaid have been declared unlawful and invalid shall not be set aside, and the declarations of invalidity herein shall automatically lapse.

2. Unless the equivalent amount of the balance of the purchase price referred to in paragraph 1.5 above is otherwise agreed to in writing within thirty (30) calendar days of the date of this order, or such other extended period not exceeding a further thirty (30) calendar days as they may agree to in writing, the parties shall engage the Commercial Arbitration Centre in Harare solely to determine the equivalent amount of that balance in any of the functional currencies, and, the decision of the arbitrator shall be final and binding.

3. The first respondent shall pay the equivalent amount of the balance of the purchase price referred to above within thirty (30) days of the date the amount is ascertained either by agreement between the parties, or through determination by arbitration as contemplated by paragraph 3 above, together with interest thereon at the prescribed rate from the date of such agreement or determination, whatever the case might be, to the date of payment.

4. In the event that the first respondent fails or neglects to pay as envisaged in this order, then, the applicants, or one or other of them, shall ipso facto, forthwith have the right to declare in writing, the immediate and automatic cancellation of the Deed of Sale aforesaid, and, without prejudice to any other rights they might have at law, shall be entitled to keep as rouwkoop all such monies as they might have received as purchase price for the original property.

5. Subject to any rights to compensation for improvements that they have in the event that the title deeds mentioned herein have been cancelled as aforesaid, the first and fourth respondents, and all those claiming occupation through them, shall, within thirty (30) calendar days of the date of such cancellation, vacate the respective properties occupied by them, failing which the Sheriff of Zimbabwe, or his lawful deputy or assistant deputies, or such of his agents as might be duly authorized by him, shall be empowered, authorized and directed to evict the aforesaid respondents and all those claiming occupation through them.

6. Save and except for the fourth respondent, whose costs of suit shall be borne by the first and second respondents, jointly and severally, the one paying the other to be absolved, each party shall bear its own costs.”…,.

It is clear from the court a quo's orders, that, some of the orders it granted had not been sought by either party. It is also clear that the parties had not made submissions for or against those orders.

They were granted mero motu by the court a quo. It did so without seeking the parties views on those orders.

There is no doubt, that, the court a quo exceeded its mandate, which was to determine the issues placed before it by the parties through pleadings and proved by the evidence led.

The function of a court is to determine disputes placed before it by the parties. It cannot go on a frolic of its own.

Where a point of law or a factual issue exercises the court's mind, but, has not been raised by the parties or addressed by them either in their pleadings, in evidence, or in submissions from the bar, the court is at liberty to put the question to the parties and ask them to make submissions on the matter.

In Welkom Municipality v Masureik and Herman t/a Lotus Corp 1997 (3) SA 363…, MARAIS JA, commenting on what the court should base its decision on, said:

“I should add that whether or not South Africa did or did not fail to do so is a question of fact upon which there was no evidence before the court a quo, and, for reasons too obvious to require enumeration, the learned Judge was not entitled to enquire into this issue of fact after reserving judgment and without any reference to the parties, and then to decide it. Compare Kauesa v Minister of Home Affairs and Others 1996 (4) SA 965 (NmS) at 973H–974C.”…,.

In the Namibian case of Kauesa v Minister of Home Affairs and Others 1996 (4) 965 (NmS) DUMBUTSHENA AJA, at pages 973H to 974C, said:

“The above matters are not crucial to the determination of this appeal. They are, however, important because a frequent departure from counsel's, more correctly the litigant's case, may be wrongly interpreted by those who seek justice in our courts of law.

It is the litigants who must be heard and not a judicial officer.

It would be wrong for judicial officers to rely for their decisions on matters not put before them by litigants, either in evidence or in oral or written submissions. Now and again, a Judge comes across a point not argued before him by counsel but which he thinks material to the resolution of the case. It is his duty, in such a circumstance, to inform counsel on both sides and invite them to submit arguments either for or against the Judge's point. It is undesirable for a court to deliver a judgment with a substantial portion containing issues never canvassed or relied on by counsel.

To produce a wide–ranging judgment dealing with matters not only extraneous and unnecessary to the decision, but which have not been argued, is an exercise full of potential pitfalls and the judgment of the court a quo has placed this court in a difficult position.

Are we to consider every opinion expressed in the judgment, however unnecessary it was to the decision and say whether it accords with our own? Or can we leave such matters well alone until such time as they become necessary to decide and are fully argued?

In our view, the latter course is the proper one to take, and, in doing so, we emphasize that it must not be thought that this Court in any way approves or endorses the many obiter opinions expressed in the judgment of the court a quo.”

Before leaving this aspect of the appeal, I consider it appropriate to refer to what was said by BHAGWATI J…, in M.M. Pathak v Union (1978) 3 SCR 334 in relation to the practice of the Supreme Court of India:

“It is the settled practice of this Court to decide no more than what is absolutely necessary for the decision of a case.”…,.

In Groenewald NO and Anor v Swanepoel 2002 (6) SA 724…, PICKERING J, commenting on what a judicial officer should do if he wants to take into consideration issues not covered in pleadings, evidence, and submissions of the parties, said:

“It was therefore the duty of the learned Judge to have informed plaintiff's counsel of the relevant point, more especially where that point was, in her view, conclusive of the matter, and to have invited him to submit argument to her.

Had she done so, counsel would no doubt have been in a position to address her concerns and the necessity for this appeal may well have been obviated.

Secondly, the remark made by the learned Judge concerning the alleged arrest of the defendants was not based on any averment made in either the pleadings or the evidence adduced before her at the hearing or in the course of argument by Mr Pretorius.

It would appear that she must have gleaned this information from some outside source.

It hardly needs stating, that, a judge may only have regard to the evidence placed before him or her during the course of the hearing and that a reliance on facts not averred in the pleadings, or raised in court, constitutes a serious misdirection.”…,.

I respectfully agree with the views expressed in the authorities referred to above.

The function of a court is to determine the dispute placed before it by the parties through their pleadings, evidence, and submissions. The pleadings include the prayers of the parties through which they seek specified orders from the court.

This position has become settled in our law.

Each party places before the court a prayer he or she wants the court to grant in its favour. The Rules of court require that such an order be specified in the prayer and the draft order. These requirements of procedural law seek to ensure, that, the court is merely determining issues placed before it by the parties and not going on a frolic of its own.

The court must always be seen to be impartial and applying the law to facts presented to it by the parties in determining the parties issues. It is only when the issues or the facts are not clear that the court can seek their clarification to enable it to correctly apply the law to those facts in determining the issues placed before it by the parties.

The judgment of the court a quo, unfortunately, fell short of these guiding principles.

In seeking to find middle ground, the court a quo granted orders which had not been sought by either party. It granted the first and fourth respondents a further grace period and a referral to arbitration.

The first and fourth respondents had not sought such orders.

Such orders cannot be sustained at law.

They seem to have been motivated by equity and sentiments of justice, rather than the law and the facts, as demonstrated by the court a quo's narration of the exploits of the legendry “judge jackal” in setting free a man who was about to be eaten by a leopard he had rescued from a trap.

Where a court is of the view that an order not sought by the parties may meet the justice of the case, it must put that possible relief to the parties and allow them an opportunity to address it on such an order.

In Proton Bakery (Pvt) Ltd v Takaendesa 2005 (1) ZLR 60 (S)…, GWAUNZA JA said:

“The appellant argues, in the light of all this, that, the action of the court a quo, in reaching a material decision on its own, amounted to gross irregularity justifying interference by this court on the principles that have now become trite.

I am, for the reasons outlined below, persuaded by this argument….,.

The misdirection on the part of the court a quo is left in no doubt. It is my view so serious as to leave this Court with no option but to interfere with the determination of the lower court.”

The determination by the court a quo, of matters not placed before it, goes against a litigant's right to be heard, and, this view is supported in the fourth edition of Judicial Review of Administrative Action by J.M. EVANS…, where it was highlighted, that, the principle that “no man is to be judged unheard” is an age-old view adopted from the ancient Greeks.

This principle has been adopted in our system under the audi alteram partem rule.

Therefore, the fact that the respondents are not taking issue with the court's mero motu decision is neither here nor there. This irregularity militates against the validity of parts of the judgment of the court a quo.

The “grace period” of thirty days granted to the first respondent by the court a quo has no founding at law and cannot be legally justified.

The initial thirty days awarded by BARTLETT J were in terms of the Contractual Penalties Act.

The purchaser, having already been granted this thirty-day period in terms of the law, cannot be granted a further thirty day period not provided for in terms of the law, to the prejudice of the seller, on no legal basis....,.

Counsel for the first respondent and counsel for the fourth respondent, without laying a clear legal basis for their submissions, supported the court a quo's decision.

The court a quo came to the conclusion, that, the contract was never properly cancelled at the instance of Shorai Nzara. However, by the time Dzingai Kashumba attempted to claim title, based on the judgment of 9 May 2001, which had superannuated, and the time within which payment should have been made had long passed; therefore, the late Dzingai Kashumba failed to perform his obligations in terms of the contract. He therefore could not lawfully claim title to the property.

This means transfer to him was unlawful and the subsequent sale and transfer to Tafirenyika Kambarami was a nullity.

SC81-21 : FRANK HUMBE vs DESMOND MUCHINA and SPARKLES SERVICES (PVT) LTD and GODFREY MUNYAMANA and SHERIFF OF ZIMBABWE and FADZAYI MUNYAMANA
Ruled By: BHUNU JA, MATHONSI JA and KUDYA AJA

It is not the number of times that a litigant approaches the court seeking recourse which determines a matter in the litigant's favour - but the existence of a sustainable cause of action.

SC93-21 : RINOS TERERA vs GEORGE LOCK and CK HOLLAND t/a HOLLAND ESTATE AGENT and ZIMBABWE HOUSING COMPANY (PVT) LTD and THE REGISTRAR OF DEEDS
Ruled By: CHITAKUNYE AJA

This is an opposed chamber application for condonation of non-compliance with the Supreme Court Rules 2018 and for extension of time within which to appeal.

Though at the outset the applicant did not state the Rule that was not complied with and the Rule under which this application is brought, it is apparent from the founding papers that the Rule not complied with is Rule 38(1)(a) and the application is in terms of Rule 43(1) of the aforesaid rules.

The intended appeal is against a judgment of the High Court handed down on 29 October 2020 upholding special pleas and dismissing the applicant's claim.

The applicant seeks an order in the following terms:

1. The application for condonation for non-compliance with the Supreme Court Rules 2018 be and is hereby granted.

2. That the application for extension of time within which to file and serve the appeal in terms of the Rules be and is hereby granted.

3. The appeal shall be deemed to have been filed on the date of this order.

4. There will be no order as to costs.

BACKGROUND

The applicant issued summons against the respondents on 9 June 2020 seeking an order:

(a) That the agreement of sale between the applicant and the first respondent be declared valid and still operational;

(b) Declaring the agreement of sale that was entered into between the first, second, and third respondents null and void;

(c) Nullifying the transfer of title of land by the fourth respondent into the third respondent's name; and

(d) That respondents pay costs of suit.

The facts giving rise to the above claim may be encapsulated as follows:

The applicant entered into an agreement of sale with the sellers of an immovable property described as Lot Number 17 Weirmouth Small Holdings of Weirmouth on 23 June 2014, namely, Laureen Tatenda Mvududu and Maureen Mazviita Middleton.

The first and second respondents acted as agents for the sellers in the transaction.

The agreement was in the names of the sellers.

The agreement of sale was subsequently cancelled and the applicant was advised of the same on 14 September 2015.

On 22 January 2016, that same property was sold to the third respondent through the agency of the first and second respondents.

Transfer was subsequently effected to the third respondent in that same year.

In his suit, the applicant did not cite the sellers upon whose mandate the first and second respondents acted.

The three cited respondents filed special pleas seeking the dismissal of the applicant's claim.

The first and second respondents sought the dismissal of the claim on the grounds, that, the claim had prescribed, that they had been wrongly cited, that the matter was res judicata and lis pendens.

The third respondent also sought the dismissal of the claim on the grounds, that, the claim had prescribed, the matter was res judicata, and that the applicant was estopped from claiming the setting aside of the third respondent's title deeds.

The applicant argued, that, the claim has not prescribed and that the matter was neither res judicata nor lis pendens.

He also argued, that, the sale to the third respondent was not above board. He alleged that the sale to the third respondent was fraudulent since there was no proper cancellation or termination of the sale agreement between him and the sellers.

The issues for determination on the special pleas were as follows:

(i) Whether or not the claim had prescribed;

(ii) Whether or not the matter was res judicata;

(iii) Whether or not the matter is lis pendens;

(iv) Whether or not the non-joinder of the former registered owners who sold the immovable property to the third respondent was fatal to the claim; and

(v) Whether or not the applicant was estopped from claiming the setting aside of the third respondent's title deeds.

After hearing submissions on the special pleas, the court a quo noted, that, the issue of lis pendens was not persisted with as the case that had given rise to it, namely, HC67/2020, had since been withdrawn by the applicant.

The court a quo proceeded to make a determination on the other grounds.

It held that the first and second respondents, being the agents who facilitated the sale and subsequent transfer of property to the third respondent for and on behalf of their principals, were unnecessarily joined to the action procedure.

The sellers and transferors having been known, their non-joinder in the case was thus fatal.

The non-joinder was coupled with misjoinder of the first and the second respondents who were discharging legal functions for and on behalf of their principals; there was therefore no valid claim against them.

The court further held, that, in terms of the Prescription Act [Chapter 8:11], section 15(d), the claim should have been made within three (3) years of the cause of action.

The judge a quo reasoned, that, the cause of action arose in 2015 when the applicant was notified of the cancellation of his agreement of sale with the sellers. It was also noted, that, despite knowledge that the property had subsequently been sold and transferred to the third respondent, in 2016, the applicant had not acted to protect his perceived interests till June 2020 when he issued the summons in question.

In upholding the special pleas, the court a quo stated thus:

“Considering the totality of submissions, it is clear, that, the cancellation of the sale agreement between the Plaintiff and the first and second defendants principals was communicated as early as 2015. Further communication, in 2016, and subsequent sale of the property to third defendant, culminating in transfer in 2016, was to the knowledge of the Plaintiff. The Plaintiff, despite the knowledge, did not take action until June 2020 when he issued summons. The Defendants special plea, that the Plaintiff's claim must be dismissed on the basis of prescription, estoppel, non-joinder, and misjoinder is well supported by the facts of this matter. The special pleas must succeed.”

Accordingly, the applicant's claim was dismissed.

The applicant was aggrieved by the decision of the court a quo.

In terms of Rule 38(1)(a) he ought to have noted his appeal within 15 days from the date of judgment. He was unable to do so hence this application for condonation of non-compliance with the Rule and extension of time within which to appeal.

APPLICANT'S SUBMISSIONS

The applicant submitted that he only became aware of the judgment on 2 November 2020.

He further submitted, that, the reason for the late noting of the appeal was that he had assumed that he could file the appeal within thirty (30) days of that date. As a result of that assumption, he attested to the founding affidavit on 21 December 2020. When he later approached court to inquire on the matter he was informed that he was out of time as the dies induciae was fifteen (15) days.

The applicant did not, however, disclose the date he approached court.

It could certainly not have been before 21 December 2020.

He conceded, that, he had failed to give a reasonable explanation for the delay between 21 December 2020, when he attested to the affidavit, and 31 March 2021 when he filed the present application.

He, in fact, acknowledged that he had not rendered any explanation for that latter period of the delay.

The applicant averred, that, he, however, had bright prospects of success on appeal because the court a quo had failed to deal with the issues on the merits.

RESPONDENTS SUBMISSIONS

All the respondents opposed the application and contended that the delay was inordinate and the applicant had not proffered a reasonable explanation for the delay.

They also contended, that, there were no prospects of success on appeal as not only were the grounds of appeal defective, but they, in fact, did not impugn the decision of the court a quo in upholding the special pleas.

As far as the respondents were concerned, the applicant has not met the requirements for condonation of failure to file the appeal in time and for an extension of time within which to file the notice of appeal.

Both counsel for the respondents were in unison on these submissions.

Counsel also submitted that the applicant had approached the court on the wrong Rule, as he had made reference to Rule 30 and Rule 38 in the application.

They further submitted, that, the applicant had been very provocative in his language and relentless in the manner in which he approached the courts, which amounts to an abuse of court process.

The applicant had virtually attacked court officials, including the Judge a quo, on matters that had not been placed before that court.

They thus prayed that the application be dismissed with costs on a higher scale as a measure of censure and to caution the applicant to take court business seriously and desist from bitter and paranoid conduct.

ISSUE FOR DETERMINATION

The issue for determination is whether or not the applicant has established sufficient cause for the grant of the order sought.

APPLICATION OF THE LAW TO THE FACTS

It is trite, that, where a litigant realises that they have fallen foul of court rules, they ought to apply for condonation without delay. The litigant must give an acceptable explanation for the failure to comply with the particular rule and for the delay in approaching court seeking condonation: see Viking Woodwork (Private) Limited v Blue Bells Enterprises (Private) Limited 1998 (2) ZLR 249 (S)...,.

One must be candid with the court in their explanation in order to satisfy the court that the explanation is reasonable and deserves the court's empathy and that there are prospects of success on appeal if granted the indulgence.

In Kodzwa v Secretary for Health & Anor 1999 (1) ZLR 313 (S)..., the court aptly indicated that:

“The factors which the court should consider in determining an application for condonation are clearly set out in HERBSTEIN & Van WINSEN's The Civil Practice of the Supreme Court of South Africa, 4ed, by Van Winsen, Cilliers and Loots at pp897-898 as follows:

'Condonation of the non-observance of the rules is by no means a mere formality. It is for the applicant to satisfy the court that there is sufficient cause to excuse him from compliance…,.

The court's power to grant relief should not be exercised arbitrarily and upon the mere asking, but with proper judicial discretion, and, upon sufficient and satisfactory grounds being shown by the applicant.

In the determination whether sufficient cause has been shown, the basic principle is that the court has a discretion, to be exercised judicially upon a consideration of all facts, and, in essence, it is a matter of fairness to both sides in which the court will endeavour to reach a conclusion that will be in the best interests of justice.

The factors usually weighed by the court in considering applications for condonation…, include;

(i) The degree of non-compliance;

(ii) The explanation for it;

(iii) The importance of the case;

(iv) The prospects of success;

(v) The respondent's interest in the finality of his judgment;

(vi) The convenience of the court; and

(vii) The avoidance of unnecessary delay in the administration of justice.'”

In Bessie Maheya v Independent Africa Church SC58-07, MALABA JA..., reiterated the position as follows:

“In considering applications for condonation of non-compliance with its Rules, the Court has a discretion, which it has to exercise judicially, in the sense that, it has to consider all the facts and apply established principles bearing in mind that it has to do justice. Some of the relevant factors that may be considered and weighed one against the other are:

(i) The degree of non-compliance;

(ii) The explanation therefor;

(iii) The prospects of success on appeal;

(iv) The importance of the case;

(v) The respondent's interests in the finality of the judgment;

(vi) The convenience to the Court; and

(vii) The avoidance of unnecessary delays in the administration of justice.”

It is pertinent that the application must be bona fide and be premised on relevant factors. The applicant must be candid with the court on the factors he/she seeks to rely on in the application.

In casu, the applicant sought to rely on:

(i) The extent of the delay, which he deemed not inordinate;

(ii) The explanation for the delay; and

(iii) Prospects of success.

These factors must be considered in their proper perspective....,.

PROSPECTS OF SUCCESS ON APPEAL

It is settled, that, where no acceptable explanation for non-compliance with the Rules has been given by an applicant seeking condonation for the late noting of an appeal, one must, at the very least, show very good prospects of success if the indulgence is to be granted: see Mahachi v Barclays Bank of Zimbabwe SC06-06; and Kombayi v Berkout 1988 (1) ZLR 53 (SC).

The applicant is required to show that he has an arguable case on appeal.

In Essop v S [2014] ZASCA 114, the court aptly stated the following...,.:

“What the test of reasonable prospects of success postulates is a dispassionate decision, based on the facts and the law, that a court of appeal could reasonably arrive at a conclusion different to that of the trial court.

In order to succeed, therefore, the appellant must convince this Court, on proper grounds, that he has prospects of success on appeal and that those prospects are not remote, but have a realistic chance of succeeding.

More is required to be established than that there is a mere possibility of success, that the case is arguable on appeal, or that the case cannot be categorised as hopeless. There must, in other words, be a sound, rational basis for the conclusion that there are prospects of success on appeal.”…,.

See Dzvairo v Kango Products SC35-17.

In casu, the main issue for determination is whether or not the court a quo erred in upholding the special plea and dismissing the claim as a result.

For an appeal to enjoy any prospects of success it must attack the findings of the court a quo on the issues before it for determination. Grounds of appeal that do not address or attack the findings upon which the determination was made would have no prospects of success at all.

In casu, the court a quo's determination was on the special plea.

The court a quo upheld the special plea and dismissed the applicant's claim on the grounds that the claim had prescribed; that there was non-joinder and mis-joinder; and that the applicant was estopped from seeking the setting aside of the third respondent's title.

The applicant's grounds of appeal do not attack any of the above findings by the court a quo.

Instead, the purported grounds of appeal, defective as they are, pertain to issues that were not argued before the court a quo.

The grounds of appeal are crafted as follows:

“1. Non-Refund of the applicant's deposit of US$35,000 binds parties to this agreement.

2. The court a quo deliberately violated section 74 of the Constitution. No competent court ever heard this case which then ordered the cancellation of the agreement of sale.

3. Third respondent is a criminal accomplice as he bought a disputed property well aware a dispute existed.

4. The court a quo erred at law for deliberately non recuse (sic) of herself in a case (the Judge) has interest in, second respondent is an agent of the High Court Sheriff at Mutare High Court, fair judgment is impossible.

5. Conflict of interest as second respondent's duties as an Estate Agent and an Agent of the Sheriff of the High Court are in conflict.

6. Gross misconduct and criminal abuse of office by the Judge to preside in a case she has interest in.

7. Deliberate violations of the agreement of sale by the Judge, second respondent has no power of attorney, the purported cancellation by second respondent is unlawful and of no effect or force.

8. The court a quo deliberately ignores double sale by first and second respondents to third respondent.

9. The court a quo cannot prove a breach, neither do respondents.

10. The court a quo erred by assuming this case was brought to court in June 2020, when in fact it was at the courts in August 2017. See annexure E.

11. Fraudulent court orders, Annexures 'J' 0224983 and 'K' HC2042/19 are a result of a fraudulent Notice of set down urgent chamber application Annexure 'I' HC1377/19 as it is not served on the applicant. It has a wrong surname, wrong address, and faxed at odd hours of business, 2:11am.”

The grounds of appeal do not challenge findings that he was advised of the cancellation of the agreement of sale in 2015 hence when he filed the summons in issue, on 9 June 2020, a period of more than 3 years had lapsed; that the first and second respondents were merely acting as agents for the owners of the property who were known to the applicant and so could not be sued in place of known principals; and that he knew about the sale and transfer to the third respondent in 2016, and, so, by the time he issued the summons in question, a period of three years had lapsed.

It may also be noted, that, the relief that he seeks on appeal is on the merits and is the same as in the summons.

The relief is thus incompetent as it is premised on the merits of the matter when the intended appeal ought to have been on the determination on the special pleas.

Clearly, the applicant has lamentably failed to establish an arguable case on appeal for which I can grant the order sought.

There are no prospects of success at all.

The respondents counsel, in seeking costs on the higher scale, alluded to the litigious nature of the applicant in spite of extant court orders against him which he has not challenged and the fact that the property in question was transferred to the third respondent in 2016 to his knowledge.

Transfer to the third respondent was effected more than three years ago yet the applicant still drags the respondents to court on unsustainable claims.

In this regard, they submitted, that, the applicant has been constantly in and out of the courts in a plethora of matters, some of which were referred to as case numbers HC1236/17, HC8602/17, HC1377/19, HC2042/19, MUTP 3015-16/18, Mutare Magistrates Court 2102/17, not to mention open files before the Anti-Corruption Court, the Law Society of Zimbabwe, and the Judicial Service Commission Secretariat.

The applicant clearly is very litigious and unrelenting despite advice that his complaints were not sustainable.

It is in the interests of justice that court proceedings be brought to finality.

Competent orders affording real rights to the third respondent remain extant as the applicant has not appealed against them.

They thus submitted that the applicant be mulcted with costs on a higher scale.

I am inclined to agree with the respondents on this point.

The applicant's Achilles heel is his failure to seek appropriate legal advice in pursuit of litigation. In the result, he has pursued wrong causes, just as in this case, whereby, instead of appealing against the findings by the court a quo on the special plea, he opted to attack issues that were not determined by the court a quo.

In this regard, during the hearing, effort was made to direct him to the real issues at hand as he had submitted heads of arguments unrelated to the findings on the special plea.

The applicant seems to be confused as to the extent of the issues he can raise on appeal. He appears headstrong that this Court, if it is to condone his non-compliance, should proceed to hear his cause on the issues the court a quo did not hear at all.

The inevitable consequence is that he has caused the respondents to defend the spurious processes thus incurring unnecessary costs. The respondents were thus justified in seeking costs on a punitive scale.

DISPOSITION

Accordingly, it is ordered that -

The application for condonation of non-compliance with the Rules, and extension of time within which to appeal, be and is hereby dismissed with costs on the legal practitioner and client scale.

SC102-21 : DOVES FUNERAL ASSURANCE (PVT) LTD vs FERNABY INVESTMENTS (PVT) LTD and QUECOM ENGINEERING (PVT) LTD and DENNIS NGORIMA and STANDARD CHARTERED BANK LTD and HOMELAND REAL ESTATE and THE SHERIFF
Ruled By: BHUNU JA, MATHONSI JA and CHITAKUNYE JA

On 7 October 2020, the High Court handed down judgment in an application made by the first and third respondents in terms of Rule 359(8) of the High Court Rules, 1971.

It set aside the Sheriff's sale of a property known as Lot 8 Brooke Estate, Harare in execution of a judgment in favour of Standard Chartered Bank Limited and granted the first, second, and third respondents three months to either satisfy the judgment debt or find another purchaser willing to pay more than USD260,000 for the same property.

This is an appeal against that judgment of the High Court (the court a quo).

After hearing submissions by counsel, this Court issued the following order:

“1. The appeal succeeds.

2. By consent, the first, second, and third respondents shall bear the costs of suit.

3. The judgment of the court a quo be and is hereby set aside and substituted with the following:

'(i) The application to set aside the Sheriff's sale be and is hereby dismissed with costs.

(ii) The sale of the applicant's property, being certain piece of land situate in the district of Salisbury called the remainder of lot Brooke Estate, measuring 7258 square meters, held under Deed of Transfer No.4935/2004, sold by public auction to the third respondent, in the sum of $260,000 be and is hereby confirmed.'”

After issuing the order, we stated that the reasons for doing so would follow. What follows hereunder are those reasons.

THE FACTS

Quecom Engineering (Private) Limited, which is the second respondent herein, entered into a loan agreement with Standard Chartered Bank Limited, the fourth respondent herein, in terms of which the latter extended a revolving credit facility to it with a limit of USD800,000.

The first and third respondents, together with the third respondent's now deceased wife, bound themselves as sureties and co-principal debtors for the due performance by the second respondent of its obligations under the loan agreement.

In addition, the first respondent executed a deed of hypothecation over its immovable property, which is now the subject of the dispute between the parties, as security for the second respondent's indebtedness to the Bank.

In due course, the second respondent benefited from the loan but failed to pay the sum of $241,056 which remained owing.

The Bank sued and obtained judgment against the first, second, and third respondents in the sum of $292,272=12 together with ancillary relief.

A writ of execution against property was issued leading to the attachment by the sheriff of the immovable property forming the basis of the current dispute.

Then, began the haggling over the sale of the property, which, when put on sale, would attract unreasonably low prices.

The first attempt at selling the property, on 24 January 2015, attracted a sale price of US$150,000. The first, second, and third respondents filed a request to set aside the sale, which, by consent, was not confirmed by the sheriff.

On 6 August 2015, the judgment debtors were given an opportunity to sell the property by private treaty. They failed to do so, resulting in the property being placed on public auction, where, on 12 January 2017, it only fetched a price of $150,000.

Again, the judgment debtors requested the setting aside of the sale by the Sheriff.

At that stage, the parties agreed that they be given a further four (4) months to sell the property by private treaty failing which the sale for $150,000 would be confirmed.

Again, the judgment debtors failed to find a purchaser. As a result, the sale was confirmed by the Sheriff.

Unhappy, the judgment debtors filed an application to set aside the Sheriff's confirmation in terms of Rule 359(8). This was under case number HC7151/17.

They obtained an order, on 27 September 2017, setting aside the sale by private treaty. The court gave them another period of six (6) months to try and sell the property for a price above the $150,000 previously achieved, and, if they failed, the court directed that the property be sold by public auction.

The judgement debtors again failed to sell the property.

On 6 September 2018, the Sheriff sold the property by public action to the appellant for $260,000.

The judgment debtors would have none of it.

They still filed with the Sheriff a request in terms of Rule 359(1) for the setting aside of the sale on two grounds, namely, that:

(a) The sale was improperly conducted; and

(b) The property was sold for an unreasonably low price.

The Sheriff dismissed the request to set aside the sale and proceeded to confirm it on 29 November 2018.

PROCEEDINGS IN THE COURT A QUO

On 12 December 2018, the judgment debtors launched a court application in the court a quo, in terms of Rule 359(8), for the setting aside of the Sheriff's decision to confirm the sale. They cited two grounds for seeking that relief, namely, that;

(i) The property was sold for an unreasonably low price; and

(ii) That they had found a financier who was willing to pay the full judgment debt on their behalf from the proceeds of the sale of its property.

The financier was said to be in the process of selling its own property to raise funds.

The application was opposed by the appellant which set out the chequered history of the matter making it clear that the so-called financier was in fact a company known as Retour Investments (Private) Limited.

It had, in 2015, been touted by the judgment debtors as a potential financier - without any headway.

In the course of preparing its judgment, the court a quo came up with issues not raised by the parties.

It mero motu invited the parties to address it on two legal issues;

(i) Firstly, whether the application before it was one for a review of the Sheriff's decision.

(ii) Secondly, it desired to know whether it was open to the Sheriff to depart from the provisions of Rule 359 by allowing an oral hearing without the parties having filed formal pleadings.

Having done that, the court a quo refrained from determining the merits of the application before it but disposed of the application entirely on the issues raised by it mero motu.

The court a quo found, that, once a request to set aside the sale is made to the Sheriff, any person intending to oppose it should indicate the grounds for opposition and submit affidavits to support the grounds for opposition.

It found, further, that, as the appellant had failed to file written submissions opposing the objection to the sale, but appeared before the Sheriff to make oral submissions, the hearing by the Sheriff was a nullity.

Having concluded that the Sheriff's proceedings were a nullity, the court a quo set aside the decision to confirm the sale.

It however proceeded to grant the judgment debtors a further period of three (3) months to either satisfy the judgment debt or find another purchaser willing to pay more than $260,000 for the property failing which the sale to the appellant would be deemed confirmed and the property transferred to the appellant.

PROCEEDINGS BEFORE THIS COURT

The appellant was aggrieved by the judgment of the court a quo. It noted the present appeal on two grounds, namely, that:

1. The court a quo erred in granting the first to third respondents a further three months to sell the attached property by private treaty without considering the merits of their objection and whether the objection constituted good cause to justify such order.

2. The court a quo erred at law in granting the first to third respondents the right to sell the attached property by private treaty when such right no longer existed having been granted such opportunity several times before and when there was no firm offer from a prospective purchaser to pay a price higher than the public auction.

This appeal requires the court to determine one issue, namely, whether the court a quo erred in setting aside the confirmation proceedings of the Sheriff and affording the judgment debtors three (3) months period to secure a buyer by private treaty.

WHETHER THE COURT A QUO ERRED IN SETTING ASIDE CONFIRMATION OF THE SALE

Counsel for the appellant submitted, that, the court a quo erred in determining the matter on grounds other than those provided for in Rule 359(1) as read with Rule 359(8) and (9).

He submitted, further, that, the court a quo did not focus on the relevant grounds but on points that it raised mero motu and then relied on those points to dispose of the matter.

It was further submitted, on behalf of the appellant, that, where a request is made by an interested party, to the Sheriff, in terms of Rule 359(1), for the setting aside of a sale, the Sheriff has no power to grant default judgment as suggested by the court a quo.

In all the circumstances, the Sheriff is required, even where no opposing papers are filed, to consider the request and decide whether there is a basis for setting aside the sale.

In advancing that argument, counsel for the appellant relied on the authority of Zimunhu v Gwati & Ors SC43-02 which held, that, even if no opposing papers have been filed following a request to set aside the sale, the Sheriff still has a duty to consider the papers before him or her and decide whether they provide a basis for setting aside the sale.

In addition, the point was made, on behalf of the appellant, that, once an application in terms of Rule 359(8) had been made, the court a quo was enjoined to consider its merits. It could not set aside the sale on mere technicalities.

In this case, the property had been sold on a number of occasions previously but the sales were set aside on the basis of low price.

The sum of $260,000 offered by the appellant was the highest price ever achieved.

The judgment debtors had been accorded opportunities before to sell the property by private treaty. They failed to secure a buyer offering more than what was achieved at the Sheriff's sale.

The valuation report relied upon by the judgement debtors, which placed the forced sale value of the property at $307,500 was done on 5 December 2018 - long after the Sheriff's sale. It was therefore of no use in determining the application.

Per contra, counsel for the first, second, and third respondents submitted, that, the court a quo found an irregularity in the proceedings before the Sheriff. The irregularity was the failure by the appellant to file opposing papers to the request for the setting aside of the sale.

He submitted further, that, having found an irregularity, the court a quo was correct in concluding that the proceedings were a nullity and setting aside the sale. It was correct in not relating to the merits of the matter.

Regarding the issue of whether the judgment debtors have a right to procure a new purchaser, counsel for the first, second, and third respondents submitted, that, the Sheriff's price was unreasonably low. As such, nothing stopped them from doing so.

He however conceded, that, the valuation report submitted by the judgment debtors was irrelevant.

After the interventions of the court directed at whether the jurisdiction of the court a quo, in an application of that nature, could be triggered if the proceedings before the Sheriff were a nullity, counsel for the first, second, and third respondents capitulated; he then suggested that the matter be remitted to the court a quo for a determination on the merits.

The dispute which gave rise to this appeal was initiated by a request made to the Sheriff by the judgment debtors in terms of Rule 359(1) of the High Court Rules. It provides:

“(1) Subject to this rule, any person who has an interest in a sale in terms of this Order may request the Sheriff to set it aside on the ground that:

(a) The sale was improperly conducted; or

(b) The property was sold for an unreasonably low price, or on any other good ground.”

Subrule (1) of Rule 359 therefore imposes limitations on the grounds upon which an interested party may approach the Sheriff with a request to set aside the sale of property in execution of a judgment.

In his affidavit in support of the objection to the sale which was submitted to the Sheriff, the third respondent set out the grounds at paragraphs 20 and 21 as follows:

“20 The purchase price of US$260,000 is a slight improvement from the price of US$150,000 fetched in July 2015 which was roundly condemned by the parties and subsequently set aside by consent of the parties.

21. Applicant is still objecting to the confirmation of the sale on the basis that the purchase price that is being offered by third respondent is below the forced sale value and the actual market value.”

The Sheriff dismissed the objection and confirmed the sale.

The judgment debtors approached the court a quo, in terms of Rule 359(8), for an order setting aside the sale.

They did not seek to be given three months to sell the property by private treaty - which relief the court a quo granted mero motu.

I mention, in passing, that, the court a quo could not grant relief which was neither prayed for nor established in the application.

It is a cardinal principle of our civil practice and procedure, that, the onus is on a person who claims something from another in a court of law to satisfy the court that he or she is entitled to it: see ZUPCO Limited v Pakhorse Services (Private) Limited SC13-17.

Equally important is the principle, that, where there is a dispute on some question of law or fact, there must be a judicial decision or determination on the issue in dispute. A failure to resolve the dispute is a misdirection that vitiates the order given: see Gwaradzimba v CJ. Petron & Co (Proprietary) Limited 2016 (1) ZLR 28…,.

By the same token, it is a grave misdirection for a court to determine an issue not placed before it by the parties and proceed to grant relief not sought by any of the parties.

A party interested in a Sheriff's sale can only approach the court in terms of Rule 359(8) where the Sheriff has refused a request made in terms of Rule 359(1).

In terms of Rule 359(7);(8) and (9):

“(7) On receipt of a request in terms of subrule (1), and any opposing or replying papers filed in terms of this Rule, the Sheriff shall advise the parties when he will hear them, and, after giving them or their legal representatives, if any, an opportunity to make their submissions, he shall either -

(a) Confirm the sale; or

(b) Cancel the sale and make such order as he considers appropriate in the circumstances, and shall, without delay, notify the parties in writing of his decision.

(8) Any person who is aggrieved by the Sheriff's decision, in terms of subrule (7), may, within one month after he was notified of it, apply to the court by way of court application to have the decision set aside.

(9) In an application in terms of sub-rule (8), the court may confirm, vary, or set aside the Sheriff's decision or make such other order as the court considers appropriate in the circumstances.”

The court a quo found that the Sheriff deviated from the rules of court rendering the proceedings irregular and the “decision reached thereon a nullity.”

It however went on to issue an order giving the judgment debtors more time to sell the property.

The jurisdiction of the court a quo to exercise power reposed to it by Rule 359(9) arises from an application being made to it in terms of sub rule (8). Such an application can only be made following a decision by the Sheriff refusing to set aside the sale in terms of subrule (7).

The Sheriff can only make a decision in terms of sub-rule (7) upon a request made to him by an interested party in terms of subrule (1).

Where the proceedings before the Sheriff are a nullity, as the court a quo found, erroneously in my view, the jurisdiction of the court a quo, in terms of subrule (9), cannot be engaged.

It can only be engaged where there were valid proceedings conducted by the Sheriff.

There was a glaring misdirection in granting the judgment debtors relief as the court a quo did.

In any event, it occurs to me, that, the failure by the appellant to file written opposition to the request for setting aside the sale made to the Sheriff, as required by Rule 359(4), could not give rise to a default judgment.

I do not read subrules (4) and (7) as giving rise to an automatic bar against an interested party from contesting the request made to the Sheriff. The use of the word “may” in sub-rule (4) suggests discretion on the party to lodge written notice to the Sheriff.

Equally so, the expression: “On receipt of a request in terms subrule (1) and any opposing or replying papers” in subrule (7) is indicative of the fact, that, opposing papers may or may not be filed.

All that does not detract from the duty of the Sheriff to consider the request and decide whether there is a basis for setting aside the sale.

The Sheriff did that.

I am aware that having concluded that the proceedings before the Sheriff were a nullity, the court a quo did not fully engage the merits.

The court a quo however granted three (3) months for the judgment debtors to satisfy the judgment or find another purchaser.

One can therefore safely say that it regarded the price as being unreasonably low - without giving reasons.

This is therefore not a case in which the matter can be remitted to the court a quo for a determination on the merits. Either it determined the merits or its judgment had that effect.

More importantly, this case has a chequered history wherein a beneficiary of a court judgment has struggled to execute it since 2014. The judgment debtors have had ample time given to them by the court to either pay the debt or sell the property in question at a higher price. They have failed to do so.

There must be finality to this long standing case.

No case whatsoever was made, either before the Sheriff or the court a quo, for the setting aside of the sale.

It is for these reasons that we issued the order mentioned above.

HH974-15 : GUGULETHU HURASHA vs CENTRAL AFRICAN BUILDING SOCIETY and FIRST CAPITAL PLUS and ITAYI MUNYEZA and SHERIFF OF ZIMBABWE and MASTER OF THE HIGH COURT
Ruled By: NDEWERE J

The applicant and the third respondent divorced on 16 January 2014 in Case No. HC7328/13.

In terms of a consent paper concluded on 14 November 2013, which became part of the divorce order of 16 January 2014, the applicant and the third respondent agreed to give their matrimonial home, Stand No.17074 Giraffe Crescent, Borrowdale West, Harare to their two minor children in equal shares.

Paragraph E.5 of the Consent Paper stated as follows:

“E. Division of Matrimonial Property

5. Stand No.17074 Giraffe Crescent, Borrowdale West, Harare shall be awarded to the two minor children in equal shares. The property shall be transferred and registered in the said minor children's names within one year of the order. The parties shall sign all relevant papers to effect transfer to the minor children, failing which, the Sheriff Harare shall sign all such papers as if it were the plaintiff and defendant. The plaintiff shall pay the cost of the transfer. In addition, the defendant shall exercise the rights (usufruct) of use and occupation until she dies or remarries whichever occurs sooner.”

Stand No.17074 Giraffe Crescent was not transferred and registered in the children's names within one year, contrary to what was ordered by the court.

The court was not told of any steps which were taken by the applicant and the third respondent towards complying with the Divorce Order.

It also appears, that, the Sheriff, who was supposed to sign all the papers, for purposes of transfer and registration, if the applicant and the third respondent failed to do so, was never approached.

The property thus remained in the third respondent's name, in contravention of the divorce order.

It is common cause, that, in August, 2015, the above property was attached by the first respondent in order to satisfy a debt by the second respondent where the third respondent had signed as surety.

The applicant says she became aware of the attachment on 21 August 2015. On 2 September 2015 the applicant filed an urgent chamber application for stay of execution of the writ of attachment.

There was a delay of more than 10 days from the date of the attachment to the date of filing of the urgent application. That delay is not explained, contrary to case authorities which indicate that any delay in approaching the court urgently should be explained since an applicant in an urgent application should herself treat the matter urgently.

The first respondent opposed the urgent application....,.

I will..., proceed to consider the merits of the application.

The court order of 16 January 2014 said Stand 17074 Giraffe Crescent was to be transferred and registered in the minor children's names within one year of the divorce order….,.

This time limit was put to protect the interests of the minor children by ensuring a speedy transfer and registration into their names.

This was not done, and, as stated previously, no explanation is given as to why that was not done.

There is just a bald statement by the applicant, which was not supported by a supporting affidavit from the third respondent, that the third respondent did not have the money to process the transfer.

The attachment was done more than one and a half years after the divorce order.

Why then should the first respondent be prejudiced when it is the applicant and the third respondent who failed to protect their minor children's rights by complying with the terms of the divorce order to transfer and register the house into the children's names within a year of the divorce order?

The adage “the law helps the vigilant and not the sluggard” enunciated in Ndebele v Ncube 1992 (1) ZLR 288…, is applicable in this instance.

The applicant and the third respondent were not vigilant in safeguarding the minor children's interests.

Secondly, as indicated by the first respondent, the applicant was aware of the debt and the search for assets as far back as December 2014, yet, she still did not make effort to ensure registration of the house into the children's names.

What further compounds the matter for the applicant is that the relief she is seeking sounds permanent in nature.

It is not a stay pending some other application or action to be taken but a permanent stay of execution.

Her affidavit, in paragraph 18.3, also suggests that the second and third respondents have no financial means to clear the debt.

All these factors militate against the granting of the application.

Granting the application will mean that the first respondent cannot recover his debt from the second and the third respondent forever, when he has a court order entitling him to do so, and this court has no power to stop a creditor with a valid court order from recovering his debt.

In any event, the property is also mortgaged to another creditor so the rights of the children remain exposed even if the application were to be granted.

As correctly conceded by the applicant, in paragraph 19.1 of her founding affidavit, the attachment cannot be faulted since the property still belongs to the third respondent.

While the court sympathises with the minor children in this case, the court has no legal basis to stay execution of the attached property.

The application is therefore dismissed with costs.

SC35-17 : LEONARD DZVAIRO vs KANGO PRODUCTS
Ruled By: ZIYAMBI JA, GOWORA JA and GUVAVA JA

This is an appeal against the entire judgment of the Labour Court sitting at Gweru dated 12 March 2013 dismissing the appellant's application for condonation for leave to file his appeal out of time.BACKGROUNDAlthough the facts of this matter are mainly common cause, it is necessary to set them out ...

This is an appeal against the entire judgment of the Labour Court sitting at Gweru dated 12 March 2013 dismissing the appellant's application for condonation for leave to file his appeal out of time.

BACKGROUND

Although the facts of this matter are mainly common cause, it is necessary to set them out in some detail in order to determine whether the court a quo exercised its discretion judicially.

The appellant was employed by the respondent as a Creditor's Clerk. He was charged under the relevant Code of Conduct with the offence of “any conduct or omission inconsistent with the fulfillment of the express or implied conditions of his contract of employment and willful disobedience to a lawful order.”

It was alleged, that, the appellant failed to comply with written and verbal instructions given to him on 24 May 2001 regarding the checking of daily banking.

Following a disciplinary hearing, he was found guilty and dismissed on 15 August 2002.

He appealed against the decision to the internal Appeals Committee which upheld the decision of the disciplinary hearing on 4 September 2002.

About five months later, the appellant alleged, that, he filed a notice of appeal with the Labour Relations Tribunal Court on 26 February 2003. The respondent asserted, that, they were not served with the notice of appeal and there is no proof in the record that they were served.

The matter was never prosecuted.

The appellant states, in his founding affidavit, that, he made several inquiries with his legal practitioners about the appeal but did not get a satisfactory response. On 5 July 2006, he retrieved his file from his erstwhile legal practitioners and instructed new counsel. His new legal practitioners wrote a letter to the Registrar of the Labour Tribunal enquiring about the appeal. As they did not have a reference number, they did not receive a response.

Through his new counsel, the appellant then filed a chamber application for condonation of late noting of appeal and extension of time at the Labour Court in November of 2006.

This application, for some unknown reason, was only served upon the respondent in October 2012.

Perturbed by his new lawyers seeming ineptitude, the appellant wrote a letter of complaint to the Secretary of the Law Society of Zimbabwe in October of 2010 complaining against the legal practitioners. His legal practitioners then renounced agency.

He then enlisted the services of another lawyer.

Following the application for condonation made in 2006, the appellant then filed heads of argument in December of 2012.

The Labour Court dismissed the application for condonation of late noting of appeal and extension of time on 12 March 2013.

After a further five months, on 26 August 2013, the appellant filed for condonation for late filing of an application for leave to appeal to the Supreme Court.

This application was dismissed by the court a quo. He subsequently filed another application for leave to appeal which was eventually granted.

The appellant then filed his appeal with the Supreme Court on 19 November 2014.

The appellant has appealed to this court on four grounds which he set out as follows:

“1. The Court a quo misdirected itself by dismissing an application on the basis of the extent of delays occasioned to the appellant by members of this honorable court and their resultant failure to proffer reasonable explanation for the professional ineptitude.

2. The court a quo erred in failing to place importance of the case to the public at large which protection should only be seen to be given by this honorable court exclusively as one of the main purposes of the act.

3. The court a quo misdirected itself by upholding the need to put finality to litigation at the expense of justice thereby ignoring the record that clearly showed seriousness of purpose displayed by the now self-acting appellant throughout his case as a court of equality.

4. The court a quo erred by conditioning the glaring misrepresentation by a legal practitioner who forged appellants signature of an affidavit after inheriting the case from another lawyer who had also inadvertently and unjustifiably delayed to note an appeal as required by the hallowed rules of the Labour Court as provided for in Statutory Instrument SI59 of 2006.”

As can be seen from the grounds of appeal, the appellant is dissatisfied with the manner in which the court a quo dealt with his application for condonation of the late noting of an appeal.

It is therefore necessary to ascertain whether the court a quo complied with the requirements of the law in respect to such applications.

REQUIREMENTS FOR AN APPLICATION FOR CONDONATION

In the case of Forestry Commission v Moyo 1997 (1) ZLR 254 (S), GUBBAY CJ sets out factors to be considered in such an application. These are as follows:

(a) That the delay involved was not inordinate, having regard to the circumstances of the case;

(b) That there is a reasonable explanation for the delay;

(c) That the prospects of success, should the application be granted, are good; and

(d) The possible prejudice to the other party should the application be granted.

See also Marick Trading (Pvt) Ltd v Old Mutual Life Assurance Co (Pvt) Ltd & Anor HH667-15.

The appellant explains the delay by giving a series of unfortunate interactions with inefficient lawyers.

KORSAH JA, in Kombayi v Berkout 1988 (1) ZLR 53 (SC), stated thus:

“The broad principles the Court will follow in determining whether to condone the late noting of an appeal are:

(i) The extent of the delay;

(ii) The reasonableness of the explanation for the delay; and

(iii) The prospects of success.

If the tardiness of the applicant is extreme, condonation will be granted only on his showing good grounds for the success of his appeal.”

In casu, even if the court were to disregard the time the appellant spent changing lawyers, the appellant disregarded the restriction of time placed by the Labour Court Rules.

Rule 15(1) of the Labour Court Rules provides for 21 days to note an appeal once one has received the decision.

The period between the granting of the judgment in 2002 and noting of the appeal, after instructing the first lawyer in February of 2003, is well beyond the 21-day limit.

No justifiable excuse has been proffered by the appellant as to why it took him so long to file the appeal.

The application for condonation was made on 12 November 2006, but only served on the respondents in 2012. They quickly opposed the application, but, the Heads of Argument were only filed on 27 December 2012.

From the papers before me, no explanation was made for this delay.

The court a quo cannot be faulted for finding that the delay was caused by the appellant's own dilatoriness.

In the case of H. J. Vorster (Private) Limited v Save Valley Conservancy SC20-14 this court concluded that:

“…, there was no merit in the application for condonation because the applicant's predicament was due to its own dilatoriness. Having so found, the court proceeded to dismiss both applications with costs on the legal practitioner and client scale.”

With regard to the appellant's allegation that it was the incompetence of his erstwhile legal practitioner that led to the excessive delays, the court a quo, correctly in my view, held, that, even where this is the case one cannot seek to insulate himself using such a defence.

A litigant will not be completely absolved for the incompetence of his or her legal practitioner.

This principle was set out in the case of Kombayi v Berkout 1988 (1) ZLR 53 (SC)…, where KORSAH JA quoted with approval the case of Saloojee & Anor NNO v Minister of Community Development 1965 (2) SA 135 (A)…, where it was stated that:

“There is a limit beyond which a litigant cannot escape the results of his attorney's lack of diligence or the insufficiency of the explanation tendered. To hold otherwise might have a disastrous effect upon the observance of the rules of the Court. Considerations ad misericordium should not be allowed to become an invitation to laxity.”…,.

It should also be noted, that, in the case of Ganda v First Mutual Life Assurance Society SC01-05 the court was at pains to explain that it is not enough for one seeking condonation to simply explain the delay of the failure to observe the Rules in the main appeal - but one needs to do so also with the delay in the seeking of the condonation.

“In addition, it is pertinent to note, that, it has been stated in a number of cases that a person seeking condonation of the late noting of an appeal should give a reasonable explanation, not only for the delay in noting the appeal, but also for the delay in seeking condonation.

Thus, in Saloojee and Anor, NNO v Minister of Community Development 1965 (2) SA 135 (A) at 138H STEYN CJ said:

'What calls for some acceptable explanation is not only the delay in noting an appeal and in lodging the record timeously, but also the delay in seeking condonation.

As indicated, inter alia, in Commissioner for Inland Revenue v Burger 1956 (4) SA 446 (A) at p449, and in Meintjies case supra [Meintjies v H.D. Combrinck (Edms) Bpk 1961 (1) SA 262 (A)] at p264, an appellant should, whenever he realizes that he has not complied with a Rule of Court, apply for condonation without delay.'”

In the case of Musiyarira v Rufaro Marketing SC96-05 this court highlighted that it will be slow to interfere with a court a quo's decision on condonation as it involves the exercise of discretion.

“Condonation of the late noting of an appeal and granting an extension of time within which an appeal is to be noted are matters within the discretion of the court of first instance. Unless it has been shown that the learned President of the Labour Court misdirected herself in dismissing the application, this Court will not interfere with the exercise of that discretion.

The delay was indeed inordinate. The explanation given for the delay was correctly found unacceptable. There is nothing to gainsay the finding by the court a quo that there were no prospects of success on appeal.”…,.

The law is clear that there must be finality to litigation.

McNALLY JA spoke on this in Ndebele v Ncube 1992 (1) ZLR 288 (S)…, when he said the following:

“It is the policy of the law that there should be finality in litigation.

The time has come to remind the legal profession of the old adage, vigilantibus non dormientibus jura subveniunt- roughly translated, the law will help the vigilant but not the sluggard.”…,.

The appellant attempts to rely on Dalny Mine v Musa Banda 1999 (1) ZLR 220 (S)…, where the court stated, that, deciding labour matters on technicalities is not desirable.

However, if one examines the quote in full from this case, McNALLY JA stated as follows:

“As a general rule, it seems to me undesirable that labour relations matters should be decided on the basis of procedural irregularities. By this, I do not mean that such irregularities should be ignored. I mean that the procedural irregularities should be put right….,.

I would think it often superfluous for the Tribunal to hear evidence relating to the irregularities.

I say 'often' because there may be cases in which this is not so.

It may be that the existence of irregularities will affect the date from which the termination of employment takes effect. It may sometimes take effect from the date on which the irregularity is cured.”…,.

As can be observed, his remarks are not a blanket cover for all technical defects.

It was highlighted that there are circumstances where a decision on technicalities could be warranted, and, in my view, this case is one such example.

The appellant's lack of diligence was of such gross magnitude that it ceased to be a mere technicality that can be cured.

With regards to the prospects of success, the appellant has not shown that he has any prospects of success on appeal.

His complaint was merely that the case had never been heard on the merits.

This is not sufficient.

He must allege facts, which, if proved, would show that he had prospects of success.

To grant condonation in respect of an appeal with little to no prospects of success only serves to clog the judicial system.

In casu, the merits of the appeal cannot even be ascertained as they were never explored in a trial court.

From its inception, this matter has been a series of applications for condonation and cries for mercy. The appellant alleges, that, this amounts to denying him a right to be heard for procedural technicalities.

However, it is clear, that, in the twelve years the matter has lingered in the justice system, if the appellant had been diligent, he would have had his day in court.

In my view, the appellant has failed to establish any justification for the delay which necessitated repeated requests for condonation. Further, the appellant has failed to demonstrate any prospects of success if condonation were granted and the appeal were to be heard. Finally, the potential prejudice to the other party is totally unacceptable. Not only has the respondent been put out of pocket in defending the multitude of applications but the matter has not, to date, been finalized.

Finally, the appellant does not allege that the court a quo failed to exercise its discretion properly.

As was stated in H.J. Vorster (Private) Limited v Save Valley Conservancy SC20-14 by PATEL JA:

“As for the judgment appealed against, we are unable to find any fault or impropriety in the exercise of the court's discretion. Indeed, counsel for the appellant was unable to identify any misdirection by the court a quo in the exercise of its discretion to dismiss the applications for condonation and rescission of default judgment.”

DISPOSITION

There must be finality to litigation.

Twelve years is a remarkably long time before a matter is finalized by any standard. As such, the court a quo cannot be faulted in dismissing the application.

Accordingly, I make the following order:

1. The appeal is hereby dismissed.

2. The appellant shall pay the respondent's costs of suit.

HB38-15 : SIBUCO TRADING (PVT) LTD and EDITH KATAMBARARE vs LEADERS (PVT) LTD and MESSENGER OF COURT
Ruled By: MAKONESE J

The respondent filed an application for Directions in terms of Order 23 of the High Court Rules 1971.

On 26 November 2014, I directed that the Urgent Application for Stay of Execution, filed under case number HC2009/14, be set down for argument during the first term of 2015. The matter was set down for argument on 20 February 2015.

This judgment deals with the confirmation or discharge of the Provisional Order granted by this court on 28 August 2014.

Background

The factual background to this matter is as follows:

On 28 August 2014, the respondent (as plaintiff) obtained a judgment in the Magistrates Court for the cancellation of the lease agreement between the parties signed and concluded on 30 July 2012. The Applicant (as defendant) was also ordered to pay arrear rentals in the sum of $2,500 per month with effect from January 2013. The applicants were ejected from Shop Number 2, 79A Jason Moyo, Bulawayo and were ordered to pay collection commission together with interest at the prescribed rate and costs of suit.

Aggrieved by the judgment of the Magistrates Court, the applicants filed a Notice of Appeal and such appeal is pending before this court under case number HCA92/14.

Armed with the Notice of Appeal, the applicants approached this court, under cover of case number HC2009/14 on an urgent basis and obtained a provisional order whose interim provides that:

“Pending the finalization of this matter, execution of the magistrates court judgment under case number 732/13 is stayed.”

The respondents sought to set the matter for hearing, a move resisted by the applicants.

This prompted the filing of the application for directions.

I directed the parties to file their heads of argument and present argument on whether the application for Stay of Execution should be confirmed or discharged.

The first issue I must determine is whether the Notice of Appeal filed by the applicants is valid and complies with the rules.

Rule 29 of the Supreme Court Rules 1964 (which Rule applies to appeals to the High Court), provides that:

“Every civil appeal shall be instituted in the form of a notice of appeal signed by the appellant or his legal representative, which shall state:

(a) The date on which, and the court by which the judgment appealed against was given;

(b) If leave to appeal was granted, the date of such grant;

(c) Whether the whole or part only of the judgment is appealed against;

(d) The grounds of appeal in accordance with the provisions of Rule 3;

(e) The exact nature of the relief sought;

(f) The address of service of the appellant or his legal practitioner.”

In this matter, the Notice of Appeal does not state whether the appeal is against both liability for arrears and ejectment from the rented property.

This is far short from the peremptory requirements for the Rules.

Furthermore, to merely state, that, the appellants pray that their appeal be allowed with costs is grossly inadequate and not in compliance with the rules of the court.

The Notice of Appeal, is, in my view, fatally defective to the extent that it is a nullity.

There has been no attempt to seek to amend the Notice of Appeal in spite of the fact that the issue was raised way back in October 2014.

What this boils down to is whether the applicants can hold on to an Order for Stay of Execution obtained pursuant to a defective Notice of Appeal.

I am of the firm view, that, once it is established that the Notice of Appeal is defective and a nullity, the applicant's order for stay of execution cannot be allowed to stand.

In the case of Jensen v Acavalos 1993 (1) ZLR 216, KORSHA JA…, stated the position as follows:

“The reason is that a notice of appeal which does not comply with the rules is fatally defective and invalid. That is to say, it is a nullity. It is not only bad but incurably bad, and, unless the court is prepared to grant an application for condonation of the defect and allow a proper notice of appeal to be filed, the appeal must be struck off the roll with costs.”

HB57-15 : SIPIWO NKOMO vs MLWELIWENKULULEKO NCUBE
Ruled By: MUTEMA J

This is an application for rescission of a default judgment that was granted against the applicant in case number HC548/14.

The facts relevant to the resolution of the dispute between the parties are briefly these:

The applicant sold a BMW X5 motor vehicle registration number ACX 0734 to the respondent. The respondent paid a deposit of $12,000 and took possession of the vehicle. He, however, failed to pay the balance of $12,175.

The applicant then sued for the balance under case number HC2869/13 and obtained default judgment.

As a follow up to the default judgment, a writ of execution was issued which resulted in the vehicle in question being attached by the Deputy Sheriff.

The respondent filed an application for rescission of the default judgement under case number HC548/14.

The applicant's legal practitioners drew up papers to oppose the application, but, before they filed them, the parties reached a settlement which culminated in the signing of an agreement annexure “D” to applicant's founding affidavit. It was drafted in these words:

“MEMORANDUM OF AGREEMENT

It be and is hereby recorded that following a meeting between:

Plaintiff and her legal practitioner Mr G. Nyoni

Defendant and his legal practitioner Mr S.S. Mazibisa

It was agreed without force; duress and undue influence and the parties conscious of what they were doing, that:

1.The execution of Defendant's property be stayed only and strictly on the following conditions:

(a) That, he pays US$5,000 on 15 April 2014 and US$5,175 on the 6th of May 2014.

(b) That, he pays US$578 paid by Plaintiff to Sheriff of Zimbabwe; Sheriff's further costs and commission; interest of US$250 and costs as will be taxed, all by the 27th of May 2014.

2. The BMW X5 registration number ACX 0734 shall be removed by plaintiff from the Sheriff of Zimbabwe, at Defendant's expense (i.e. storage charges) and kept at Plaintiff's place or other safe place until the defendant has fully paid all monies detailed in paragraph (1) above.

3. Should the Defendant fail to make any one of the payments mentioned in (1) above, the plaintiff shall, without notice to the Defendant, take the vehicle to a car dealer (sellers of second hand vehicles) for the car to be sold by private treat at such reasonable price as will be determined thereat.

4. This memorandum shall stand as Defendant's mandate to the Plaintiff and the said car dealer to sell and transfer the car to the would-be purchaser.

DATED at BULAWAYO on this the 26 day of MARCH 2014.”

It was signed by both parties and their respective legal practitioners.

As a result of the agreement, the application and opposition for rescission under case number HC548/14 could not be pursued.

The respondent failed to meet the payments stipulated in the agreement of 26 March 2014 and the vehicle was taken to a dealer, but, the highest offer received was US9,000. There followed a series of correspondence between the parties legal practitioners concerning the value of the vehicle and whether the respondent should pay the applicant's costs.

On 3 September 2014, the current legal practitioners of the respondent wrote to the applicant's legal practitioners as follows:

“RE: M. NCUBE vs SIPIWO NKOMO

The above matter refers and to our previous conversation.

Kindly note, that, I am preparing a payment plan which is to commence at the end of September 2014 inclusive of clearing the balance if that option is still possible then.

In the meantime, may I please have photocopies of all the filed pleadings since Messrs Cheda and Partners seem to have lost the whole file in their moving offices. I have tried to photocopy directly from the High Court, but, at a dollar per page, it was too stiff, hence the favour that I now seek.”

The respondent was obliged with the documents he requested, which papers he then used to pursue his application for rescission of judgment in case number HC548/14 which had been laid in abeyance by the memorandum of agreement alluded to above - without alerting the applicant.

On 23 October 2014, the respondent obtained a default judgment, with costs, rescinding the judgment the applicant had obtained in HC2869/13.

The applicant says she was shocked to receive a letter, on 19 November 2014, written to her legal practitioners by the respondent's current legal practitioners to this effect:

“RE: MLWELIWENKULULEKO NCUBE vs SIPIWO NKOMO HC548/14 X REF HC2869/13

The above matter refers and to the attached court order.

Be advised that we have since obtained a rescission of judgment of the order which was in favour of your client. Mr Ncube had clearly wanted this matter to rest and had resigned himself to losing both the BMW X5 and the money, a sum of US$12,000, plus other monies that he had paid to the sheriff.

What he then found unfair was the fact that your client wanted to further make him pay a sum in excess of US$2,000 as legal costs when she had both the car and the money. Clearly, that was for all to see, a gross injustice.

In light of the rescission of judgment may the status quo before the judgment be restored, and the matter proceed through normal trial route and Mr Ncube pays the balance which was owing. Failing which, may your client make arrangements to refund the money paid to her by Mr Ncube, by the 1st of December, 2014.

As yours took back possession of the vehicle, which she is using, as we are told by Mr Ncube that he has seen her use the motor vehicle, there is therefore no legal basis for her not to return the money since she had taken back the motor vehicle and enjoys its use.”

That letter elicited a response from the applicant's legal practitioners in this vein:

“We refer to the above matter and to your 19 November 2014 letter. We are, we should confess, shocked by your stance which borders on lack of candour and dishonesty. There is a memorandum of agreement that you signed. Did you disclose it to the court? We are interested in this because we saw the papers in court and the agreement was not part thereof. Can we hear from you urgently as we are determined to take this back to court and to show the court that it was, in our view, at least, misled.”

This letter provoked no response from the respondent hence the current application.

At the hearing of the application, counsel for the respondent attempted, in vain, to introduce cases not cited in the respondent's heads of argument on the basis that he was only briefed by Ndove, Museta and Partners the day before.

I disallowed it in terms of Rule 238(2c) because Ndove, Museta and Partners had been served with the notice of set down on 12 February 2015 but briefed counsel on the eleventh hour. No explanation for that was forthcoming.

As if that was not enough, counsel for the respondent went on to smuggle into the hearing new issues that appear not anywhere in the papers in an endeavour to persuade the court to dismiss the application.

I will proceed to deal with those technical issues that he raised first before adverting to those raised in the opposing affidavit and the heads of argument....,.

3. That there should be finality to litigation

The argument raised is that instead of seeking to rescind a rescinded judgment, the applicant should simply let things stand as they are and concentrate on prosecuting the main suit thereby expediting the time honoured principle of finality to litigation.

Attractive as this may sound, it is not without trammel.

The complaint by the applicant, who was ordered to pay costs in the default judgment complained of, is that, to do so, would amount to blessing the respondent's conduct of snatching at a judgment.

Surely, the principle of finality to litigation cannot be embraced when to do so would wreak injustice along the way.

Counsel for the respondent's submission on this point cannot be sustained.

HB134-15 : STANLEY NANZOMBE vs SICINGILE MASUKU (NEE MOYO) and THE SHERIFF OF ZIMBABWE and THE REGISTRAR OF DEEDS
Ruled By: MAKONESE J

The applicant purchased the immovable property known as Stand 4022 Khumalo Township of Stand 4125 Bulawayo (commonly referred to as 36 Ellington Avenue, Khumalo, Bulawayo) at a public auction conducted by the second respondent on 19 July 2013.

The property is registered in the name of Raphael Masuku (the first respondent's husband).

The sale was confirmed by the second respondent on 17 October 2013.

The applicant complied with all the terms and conditions of the sale and duly paid the purchase price.

The transfer of the property cannot, however, be effected into the names of the applicant as the first respondent obtained a Provisional Order against her husband, Raphael Masuku, on 20 September 2000 under case number HC3089/2000. The interim order provides, in paragraph 4, that, pending an order of this court, the third respondent be and is hereby interdicted from transferring the property to a third party.

A caveat was registered against the title deed of the property in terms of that interim order.

The applicant has filed this application seeking an order for the discharge of paragraph 4 of the provisional order under case number 3089/2000 and for the upliftment of caveat number 808/2000 registered in pursuance of the interim order.

This is to enable the third respondent to effect transfer of the property from Raphael Masuku into the applicant's names.

In essence, the relief being sought by the applicant is to give effect to the judicial sale which has been stalled by the terms of the interim order granted by this court on 20 September 2000.

The first respondent has opposed the relief sought by the applicant primarily on the grounds, that, the judgment/order under case number HC1938/12 which led to the attachment and subsequent sale of the property in dispute is being challenged in court by her husband, Raphael Masuku.

In that matter, Raphael Masuku has filed an application for condonation for leave to apply for rescission of judgment under case number HC1938/12 which led to the attachment and auctioning of the property by the second respondent....,.

Background

The first respondent is married to Raphael Masuku and there is a divorce action which is pending under case number 3089/2000. On 20 September 2000, the first respondent obtained, against her husband, interim relief interdicting the sale of the property in dispute to a third party pending an order of this court.

The first respondent duly registered a caveat against the title deed bearing number 808/2000.

The divorce action, instituted some 15 years ago, has not been finalized. No proper explanation for the delay in finalization of this matter has been proffered by the first respondent.

Sometime in May 2012, Raphael Masuku was served with summons under case number HC1645/12.

At that time, Raphael Masuku was at Khami Prison on charges of theft of motor vehicle.

The plaintiff in that matter obtained judgment, and, subsequently, this led to the sale of the property known as 36 Ellington Road, Khumalo, Bulawayo in satisfaction of the judgement debt.

Under case number 1398/12, Raphael Masuku has attempted to seek a rescission of judgment.

Once again, as in the divorce matter, there seems to be no urgency in having that matter brought to finality. No sensible and plausible explanation has been advanced to explain the failure to have the application for condonation, and for rescission of judgement, resolved.

The first respondent and her husband seem content with maintaining the status quo.

It suits the first respondent to cling to the caveat registered in the year 2000. This is so because the property cannot be transferred to the applicant for as long as the caveat is not uplifted. As things stand, the first respondent is not proceeding with the divorce action and Raphael Masuku is not pursuing the application to rescind the default judgment that led to the sale of the immovable property.

Established Facts

It is not in dispute, that, the applicant purchased the property through a public auction conducted by the second respondent.

The applicant complied with all the terms and conditions of the sale and paid the full purchase price for the property.

The applicant is essentially an innocent purchaser.

It is further not in dispute, that, the property is registered in the names of Raphael Masuku, who is the registered owner of the real rights over the property.

The first respondent's opposition to the upliftment of the caveat is premised on the fact, that, the judgment which led to the property being auctioned is being challenged in court.

That judgment, which led to the sale in execution, is still operative and has not been set aside by a competent court.

It is beyond dispute, that, the immovable property was placed under attachment and sold to the applicant in terms of a valid court order.

I have already indicated, that, both the first respondent and Raphael Masuku have shown no interest in bringing to finality, firstly, the divorce matter, and, secondly, the application for rescission of judgment.

I also note, that, there is nothing in the papers to suggest, that, there was an attempt to challenge the confirmation of the sale.

The first respondent has taken no action at all to obtain an order setting aside the sale in execution.

There is therefore no basis to oppose the upliftment of the caveat registered in the year 2000, simply on the grounds, that, Raphael Masuku has not finalized his application for rescission of judgment.

As matters stand, the first respondent has remained in the property in dispute from 17 October 2013. The first respondent and her husband enjoy the use of the property - rent free.

Analysis of the Law

The onus is on the applicant to satisfy the court, that, there are special circumstances why an order uplifting the caveat should be granted: see the case of Maphosa and Another v Cook and Others 1997 (2) ZLR 314 (H).

In this matter, the learned judge goes further to state, at page 317, as follows:

“It is clear from the authorities, that, in the exercise of its discretion, the court will consider the fact that the attached property had been sold to the applicant, but, that, the applicant must show, in addition to that factor, the existence of facts or circumstances which satisfy it that it would be just or equitable to grant the relief sought.”

In the case of Bulle v Merchant Bank of Central African and Others HH02-96, it was held, that, a caveat recorded against a title deed does not confer on the judgment creditor real rights.

In the same vein, in this instance, the caveat placed against the title deed does not confer any real right on the first respondent.

In her heads of argument, the first respondent makes the following averments in paragraph 2.2:

“The first respondent stands to be prejudiced if the caveat is lifted since the said property forms part of the matrimonial property upon which a divorce matter is still pending under case number 3889/2000. This property cannot then be disposed of at the detriment of the first respondent who also happens to be an interested party. Lifting the caveat will be contrary to public policy since first respondent's husband's indebtedness cannot prejudice her interest in the property.”

I hold the view, that, the first respondent only holds personal rights against the registered owner of the real rights, Raphael Masuku.

The first respondent's opposition to the upliftment of the caveat, on the grounds that it would be against public policy, lacks merit as she may claim damages against the registered owner of the property, Raphael Masuku.

In the instant case, what the first respondent is in effect protecting is her 50% claim of the proceeds of the sale of the property upon the granting of a divorce.

That divorce, sadly, has not been resolved for 15 years, and there seems to be no interest on the part of the first respondent, or her husband, to bring the matter to a final conclusion because the issue of the caveat will then simply fall away.

The issue of the caveat is being used, in my view, as a shield against the enforcement of the applicant's rights arising from the sale of the property.

The position was aptly stated by HERBSTEIN and VAN WINSEN in Civil Practice and Procedure of the Superior Courts in South Africa, 3rd Ed…, where it is stated as follows:

“…,. A judgment creditor is entitled to attach and have sold in execution the property of his debtor notwithstanding that a third party has a personal right against such a debtor to the ownership or possession of such property, which right arose prior to the attachment or even the judgment creditor had notice when the attachment was made. An attachment in execution acts as a judicial mortgage or pignus judiciali.”

I make the further observation, that, the caveat, which has been in place for close to 15 years now, has been overtaken by events.

Since the caveat was placed on or about the time of institution of divorce proceedings, its real purpose was to prevent a sale which her husband could conclude with a third party without her knowledge, thus prejudicing her personal rights in and to the property.

The property has since been sold in terms of a sale in execution, and the first respondent can enforce her personal rights for her fair share of the proceeds of the sale against her husband.

The first respondent's opposition to the removal of the caveat lacks substantive and well-grounded basis at law.

In the result, I am satisfied, that, the applicant has made out a good case justifying the upliftment of the caveat.

In the exercise of my discretion in applications of this nature, the applicant is entitled to the relief sought.

I, accordingly, make the following order:

1. Paragraph 4 of the Provisional Order granted under case number HC3089/2000 be and is hereby discharged and caveat number 808/2000 registered over Stand 4022 Khumalo Township of Stand 4125 Bulawayo under Deed of Transfer number 3137/2000, more commonly known as Number 36 Ellington Road, Khumalo, Bulawayo be and is hereby set aside.

2. Third respondent be and is hereby authorized and directed to uplift the aforesaid caveat and allow transfer of the said property from Raphael Masuku into the names of the applicant.

3. Second respondent be and is hereby authorized to sign any relevant documents to enable transfer on behalf of the said Raphael Masuku.

4. First respondent shall bear the costs of this application.

Appealed
CC07-21 : MARX MUPUNGU vs MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and OTHERS
Ruled By: GWAUNZA ACJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHAWAYO JCC, PATEL JCC and GUVAVA AJCC

MAKARAU JCC:This is an application in terms of section 175(3) of the Constitution of Zimbabwe, for the setting aside in its entirety, of a High Court declaratory order handed down on 15 May 2021. The order, issued in respect of two distinct and separately filed applications, invalidated certain conduct by ...

MAKARAU JCC:

This is an application in terms of section 175(3) of the Constitution of Zimbabwe, for the setting aside in its entirety, of a High Court declaratory order handed down on 15 May 2021. The order, issued in respect of two distinct and separately filed applications, invalidated certain conduct by the President as unconstitutional. This it allegedly did in the first of its two parts.

Background

We summarise the facts giving rise to this application from the two applications that were filed in the High Court under case numbers HC2128/21 and HC2166/21, respectively. The facts are not complex.

The facts of this application coalesce, and relevantly so, around 15 May 2021 when the Chief Justice, Judge Malaba, reached the age of seventy. A few days before that date, on 7 May 2021 to be precise, the Constitution of Zimbabwe Amendment (No.2) Act (No.2 of 2021) came into force.

Among other provisions, it amended section 186 of the Constitution to provide for the tenure of judges in the following terms:

“(1) The Chief Justice and the Deputy Chief Justice hold office from the date of their assumption of office until they reach the age of seventy years, when they must retire unless before they attain that age they elect to continue in office for an additional five years;

Provided that such election shall be subject to the submission to, and acceptance by the President, after consultation with the Judicial Service Commission, of a medical report as to their mental and physical fitness so to continue in office.

(2) Judges of the Constitutional Court are appointed for a non-renewable term of not more than fifteen years; but

(a) They must retire earlier if they reach the age of seventy unless, before they attain that age, they elect to continue in office for an additional five years:

Provided that such election shall be subject to the submission to, and acceptance by the President, after consultation with the Judicial Service Commission, of a medical report as to their mental and physical fitness so to continue in office.

(b) After the completion of their term, they may be appointed as judges of the Supreme Court or the High Court, at their option, if they are eligible for such appointment.

(3) Judges of the Supreme Court hold office from the date of their assumption of office until they reach the age of seventy years, when they must retire, unless, before they attain that age, they elect to continue in office for an additional five years:

Provided that such election shall be subject to the submission to, and acceptance by the President, after consultation with the Judicial Service Commission, of a medical report as to their mental and physical fitness so to continue in office.

(4) Notwithstanding subsection (7) of section 328, the provisions of subsections (1), (2) and (3) of this section shall apply to the continuation in office of the Chief Justice, the Deputy Chief Justice, Judges of the Constitutional Court and Judges of the Supreme Court.”

Acting in accordance with the provisions of section 186 of the Constitution, as amended, the Chief Justice exercised the option to extend his tenure of office beyond the age of seventy for an additional five years.

By letter dated 11 May 2021, the seventh respondent, the President, accepted a medical report as to the mental and physical fitness of the Chief justice to continue in office.

The third (Musa Kika), fourth (Young Lawyers Association of Zimbabwe) and fifth (Frederick Mutanda) respondents formed the firm view, that, the seventh respondent (the President), by accepting the medical report, that the Chief Justice was mentally and physically fit to so continue in office, had subverted the correct constitutional position.

They filed the two applications in the High Court that we have detailed above, challenging the continuation in office of the Chief Justice for an additional five years beyond 15 May 2021.

In his application, the third respondent (Musa Kika), in addition to the Chief Justice, cited as respondents all the judges of the Supreme Court and some judges of the High Court.

At the time of the filing of the application, the five judges of this Court, other than the Chief Justice and the Deputy Chief Justice, were Supreme Court judges, acting as Supreme Court judges and were cited as such. Substantive appointments to this Court were made subsequent to the filing of the applications a quo but before the hearing of this application.

Whilst materially and correctly so, the third respondent (Musa Kika) averred in his application, that, the Chief Justice had opted to exercise the option introduced by the amendment, no such averment was made in respect of any or all of the other judges who were cited as respondents under case number HC2128/21.

We revert to this fact in detail later.

The primary relief sought in the applications a quo was a declaration that the amendment to the Constitution, in section 186, did not apply to the Chief Justice and the judges cited as respondents. Specifically, it was claimed, that, the amendment did not have any force and effect on the tenure of the Chief Justice and the cited judges as such an interpretation would fall foul of the provisions of section 328(7) of the Constitution.

Section 328(7) of the Constitution provides that:

“(7) Notwithstanding any other provision of this section, an amendment to a term–limit provision, the effect of which is to extend the length of time that a person may hold or occupy any public office, does not apply in relation to any person who held or occupied that office, or an equivalent office, at any time before the amendment.”

The two applications, both brought urgently, were opposed on truncated dies induciae in accordance with the terms of a case management meeting order to which all the parties agreed.

At the end of the hearing of the applications, as indicated above, the court a quo issued a singular order in the following terms:

“IT IS DECLARED THAT:

1. The second respondent in HC2128/21 who is also the second respondent in HC2166/21 ceased to hold the office of the Chief Justice of Zimbabwe and judge by operation of law on 15 May 2021 at 4:00 hours.

2. The extension of the length of time in the office of the judge beyond the age of seventy provided for in section 186 of the Constitution does not apply to the second to fourteenth and eighteenth respondents.

3. There shall be no order as to costs.”

The respondents a quo, including the judges of this Court, were aggrieved by the order.

Under separate and different covers, they filed notices of appeal in the Supreme Court challenging the correctness of the decision.

It is not necessary that we set out the grounds of appeal of each appellant in full. As and when it is it necessary to do so, we shall advert to the notices of appeal.

The applicant, strongly believing, that, the effect of the first part of the order was to declare constitutionally invalid the letter of 11 May which constituted the legal authority for the Chief Justice to continue in office, filed this application in terms of section 175(3) of the Constitution.

As indicated above, he sought the setting aside of the entire order.

This he did notwithstanding, that, on its mere reading, the High Court order did not in any way refer to the conduct of the seventh respondent (the President) as constitutionally invalid.

We observe, at this stage, that, the interpretation of the High Court order by the applicant in this regard was conceded as correct by the fourth (Young Lawyers Association of Zimbabwe) and fifth (Frederick Charles Mutanda) respondent's counsel during the hearing of the application.

We shall advert to this concession in detail in due course.

The Application in terms of section 175(3) of the Constitution

It is common cause that the applicant was not a party to either of the two applications that were determined by the High Court. He brought this application in the first instance. In the application, he alleged that he is an adult Zimbabwean who is asserting his right to access this Court directly to defend and protect the Constitution.

Arguing that the state of affairs in the country following the issuance of the High Court order was undesirable as there should never, in any jurisdiction, be doubt as to who the Chief Justice is, the applicant made two basic contentions:

(i) Firstly, he contended, that, the juristic act by the seventh respondent (the President) of accepting a medical report as to the mental and physical fitness of the Chief Justice to remain in office for an additional five years, after attaining age seventy, was valid and the High Court orders purporting to hold such as constitutionally invalid had to be set aside.

(ii) Secondly, he contended, that, section 328(7) of the Constitution, relied upon by the third (Musa Kika), fourth (Young Lawyers Association of Zimbabwe) and fifth (Frederick Charles Mutanda) respondents as precluding the amendment of the Constitution from applying to the Chief Justice and other sitting judges was not applicable as section 186(4) of the Constitution was the applicable section.

The third, fourth, and fifth respondents opposed the application.

The first (Minister of Justice, Legal and Parliamentary Affairs), second (Judicial Service Commission), sixth (Attorney General) and seventh (the President) respondents were content to keep a watching brief during the hearing of the application.

The third respondent (Musa Kika) opposed the application on the basis of a sole preliminary point. It was his position that this court should refrain from exercising jurisdiction in the matter.

Put differently, it was his position, edified during the proceedings by an oral application, that, this Court should recuse itself. In his view, since the second part of the High Court order declared that the judges of this and the Supreme Court could not extend their respective terms of office beyond the age of seventy, the order under scrutiny in the confirmation proceedings affects the judges of this Court directly.

In this regard, he was keen to highlight and place it on record, that, the judges of this Court had not only participated in the proceedings before the High Court but had since filed a notice of appeal against the High Court order.

It was therefore the mainstay of his exception and position, that, the judges of this Court were completely non-suited to hear this application on account of their positions as active litigants who were already seeking the vacation of the High Court order by way of appeal.

In his further view, the determination of the application by this Court, as constituted, would, in the circumstance of the matter, implicate a breach of the common law principle nemo judex in sua causa.

In opposing the application, the fourth (Young Lawyers Association of Zimbabwe) and fifth (Frederick Charles Mutanda) respondents raised a number of issues:

(i) Firstly, they challenged the competence of this Court to determine the application. They also sought the recusal of the entire bench of this Court on the same ground that the third respondent (Musa Kika) had relied upon.

(ii) Secondly, and before a competently constituted Court, the fourth respondent took issue with the locus standi of the applicant to bring the application in the manner that he did. In essence, it was the fourth respondent's position that the applicant, not having obtained any rights under the High Court order, could not purport to challenge the order.

(iii) Thirdly, and regarding the merits of the matter, the fourth respondent challenged the procedural steps taken and leading to the acceptance by the seventh respondent (the President) of a medical report as to the mental and physical fitness of the Chief Justice to continue in office for an additional five years after his seventieth birthday.

Thus, broadly speaking, the application raised for determination three distinct issues. The second issue would only become relevant and fall for determination if the respondents were not successful on the first issue and the third issue would only require determination if the respondents failed on the second issue.

(i) The first issue was whether this Court should recuse itself;

(ii) If the Court did not recuse itself, the second issue would be whether the applicant had locus standi to bring the application under section 175(3) of the Constitution; and

(iii) Finally, if he did have the requisite standing, whether the application had merit....,.

PATEL JCC: It is pertinent, at this juncture, before addressing the substance of the matter, to make an observation concerning the conduct of the third respondent (Musa Kika).

Even though he was primarily instrumental in initiating the proceedings a quo, he deliberately chose not to address any issue other than that of recusal; either in his opposing affidavit or in his heads of argument.

Equally curiously, at the end of the proceedings on the question of recusal, he and his counsel elected not to appear in any further proceedings before the Court. In the event, the matter proceeded in the absence of the third respondent and without the benefit of his submissions on the substantive merits of the matter.

The relief sought by the applicant in this matter is essentially threefold:

(i) The first is a declaratur to the effect that paragraphs 1 and 2 of the operative part of the High Court judgment No.264-21, handed down on 15 May 2021, are orders of constitutional invalidity within the contemplation of section 175(1) of the Constitution.

(ii) The second is a further declarator to the effect, that, the aforesaid High Court orders have no force unless confirmed by this Court.

(iii) Lastly, the applicant seeks a substantive order declining to confirm and setting aside the impugned High Court orders.

My learned sister, MAKARAU JCC, in addressing the application for recusal, has earlier outlined the broad issues raised by this application. Having regard to the averments contained in the affidavits filed by the parties and the arguments presented before us, the specific issues that now arise for determination in this matter are as follows:

(i) Whether the applicant has the requisite locus standi to institute this application.

(ii) The effect of the failure by the applicant in the proceedings a quo (i.e. the third respondent herein) to seek and obtain leave to sue all the judges that were cited as respondents in that matter.

(iii) Whether the orders of the court a quo are orders of constitutional invalidity requiring the confirmation of this Court.

(iv) The correctness of the judgment of the court a quo -

(a) In its interpretation of sections 186 and 328 of the Constitution; and

(b) As regards the alleged violation of the right to equal protection of the law and the right of access to the courts.

(v) Whether this Court should decline to confirm and accordingly set aside the orders granted by the court a quo.

I propose to address and determine the foregoing issues ad seriatim....,.

Absence of Leave to Sue Respondent Judges

It is common cause, that, before instituting proceedings in the court a quo, the third respondent herein did not seek and obtain leave to sue the second to the eighteenth respondents in that matter, who were, at that time, the Chief Justice, Deputy Chief Justice, Acting Judges of the Constitutional Court, Judges of the Supreme Court and Acting Judges of the Supreme Court.

The court a quo reasoned, that, such leave to sue was unnecessary for a variety of reasons:

(i) The first was that the relevant rule of court only applied to actions instituted by way of summons and not to application proceedings.

(ii) The second was that the applications before the court were made in terms of section 85 of the Constitution and there was no requirement for leave to be granted in an application made in terms of that section.

(iii) Lastly, the court opined, that, the respondents in question were cited in their official capacities and had not filed any opposing papers challenging their citation without leave.

In the event, the court found, that, the failure to obtain the leave of the court to sue the judges in question did not nullify or render the entire proceedings fatally defective.

Rule 18 of the High Court Rules 1971 stipulates as follows:

“No summons or other civil process of the court may be sued out against the President or against any of the judges of the High Court without the leave of the court granted on court application being made for that purpose.”…,.

It is not in dispute that both the Chief Justice and the Deputy Chief Justice are also judges of the High Court by operation of section 170(a) of the Constitution.

In my view, it must also be accepted, that, Rule 18 of the High Court Rules applies as well to judges of the Supreme Court by dint of Rule 73 of the Rules of the Supreme Court 2018.

The latter Rule provides, that, in any matter not dealt with in the Rules of the Supreme Court, the practice and procedure of that court shall follow, as closely as may be, the practice and procedure of the High Court in terms of the High Court Act [Chapter 7:06] and the High Court Rules.

Thus, any suit lodged in the Supreme Court against a judge of that court would be subject to the grant of leave to sue in accordance with Rule 18 of the High Court Rules, as applied, by extension, to the practice and procedure of the Supreme Court.

That being so, it would be highly illogical and irregular if a suit instituted in the High Court, against a judge of the Supreme Court, were to be excluded from the protective ambit of Rule 18 of the High Court Rules.

Having regard to the purpose underlying Rule 18 of the High Court Rules, viz. to shield and safeguard judges against frivolous or vexatious litigation, it seems to me, that, the Rule must perforce be extended and construed so as to embrace and protect all judges of the superior courts, in addition to judges of the High Court, irrespective of the court in which they may be sued.

At the relevant time, the fourth to the eighteenth respondents in the proceedings a quo were substantive judges of either the Supreme Court or the High Court.

It follows that Rule 18 of the High Court Rules would have been applicable to any “summons or other civil process…, sued out against” the second and third respondents as well as the fourth to the eighteenth respondents in the proceedings a quo.

Counsel for the fourth and fifth respondents defends the stance taken by the third respondent, qua applicant a quo, and the position adopted by the court a quo in that regard.

He submits, that, an application made under section 85 of the Constitution does not require leave to sue any judge in terms of Rule 18 of the High Court Rules. He relies for this proposition on the decision in Zimbabwe Lawyers for Human Rights & Anor v President of the Republic of Zimbabwe 2000 (1) ZLR 274 (SC).

Rule 18 of the High Court Rules is designed to avoid frivolous or vexatious suits against sitting judges or the President and this aspect, so he argues, is already catered for in section 85 of the Constitution.

Counsel for the fourth and fifth respondents accepts, that, the court a quo did not address or consider whether the citation of the judges was frivolous or vexatious. However, so he contends, the consideration of that question was not necessary or relevant given the relief that was sought from the High Court.

As against this, Mr Zhuwarara, the amicus curiae, distinguishes the decision in Zimbabwe Lawyers for Human Rights & Anor v President of the Republic of Zimbabwe 2000 (1) ZLR 274 (SC) on the basis, that, the judgment in that case did not relate to section 85 of the Constitution but turned on the absence of any equivalent to Rule 18 of the High Court Rules in the Supreme Court Rules that were in force at that time.

He submits, that, the rationale behind Rule 18 of the High Court Rules is to protect the President and sitting judges against frivolous and vexatious proceedings.

He further relies upon Nicolle v Minister of Lands & Anor 2003 (1) ZLR 280 (H) for the submission, that, the intention behind Rule 18 is that leave to sue must be sought and obtained first before proceedings are filed for substantive relief against a judge.

Before valid proceedings could eventuate in the matter a quo, it was imperative that a separate application be instituted beforehand to obtain leave to sue the judges concerned.

Consequently, the decision of the court a quo was a nullity because the court proceeded without regard to Rule 18 of the High Court Rules, and, therefore, lacked the necessary jurisdiction to deal with the matter.

This renders the proceedings a quo susceptible to summary negation by this Court for want of jurisdiction.

Accordingly, so it is argued, there is no need for this Court to relate to the merits of the present disputation.

As there were no valid proceedings a quo, it follows, that, the constitutional issues therein were improperly determined. Therefore, this Court, employing its supervisory review powers, should set aside the impugned orders a quo and substitute them with an order dismissing the application for want of leave to institute proceedings.

Counsel for the applicant agrees, that, the court a quo misdirected itself in finding that Rule 18 of the High Court Rules does not apply to applications but only to actions by way of summons. This was contrary to the rationale of Rule 18.

Although the court took the view that the judges were sued in their official capacity, the substance of the suit was against the judges in their personal capacity. Consequently, the proceedings a quo were a nullity for want of jurisdiction.

Nevertheless, counsel for the applicant submits, that, the matter should not end there.

This is because the substance of the present proceedings is fundamental to the integrity of the Constitution and the meaning of section 186(4) of the Constitution must be pronounced upon.

Because of the effect of the orders a quo on the application of section 186(4) of the Constitution, there must be a decision by this Court to ensure finality in this matter.

This is so despite the nullity of the proceedings a quo.

As I have explained earlier, the court a quo rejected the objection to its assumption of jurisdiction on three grounds:

(i) That Rule 18 of the High Court Rules did not apply to applications;

(ii) That there was no requirement for leave to sue to be granted in applications under section 85 of the Constitution; and

(iii) That the respondents in question were cited in their official capacities only.

For the reasons set out below, I am of the view, that, the court a quo manifestly misdirected itself in all three respects.

Dealing, firstly, with the last aspect, there can be no doubt that the second to the eighteenth respondents a quo were cited nomine officio, i.e. in their official capacities.

However, it is equally evident that those respondents were cited on the basis, that, they would or might benefit personally, either immediately or in the indeterminate future, from the amendments to section 186 of the Constitution.

In any event, the court a quo nonetheless proceeded to issue two distinct declarators:

(a) The first declared, that, the second respondent, the incumbent Chief Justice, ceased to hold office by operation of law.

(b) The second declared, that, the extension of judicial tenure provided for in section 186 of the Constitution did not apply to the second to the fourteenth and the eighteenth respondents. (The exclusion of the fifteenth, sixteenth and seventeenth respondents from the latter declaratur appears to have been premised on the finding, that, they were High Court judges who were “just acting judges” of the Constitutional Court and/or the Supreme Court).

It is abundantly clear, that, the substantive impact of both declarators had a definitive impact on the rights and interests of the respondents in question.

Accordingly, although they were cited in their official capacities, they were substantively affected by the orders of the court a quo in their personal capacities. This serves to fortify the point, that, leave to sue them should have been obtained before they were cited in the proceedings a quo.

As regards the scope of Rule 18 of the High Court Rules, the court a quo patently mis-interpreted the provisions of that Rule.

There is absolutely nothing in the wording of Rule 18, or any other Rule, to justify the purported distinction between actions by way of summons on the one hand and suits by way of application on the other.

Nor is there anything in Rule 18 of the High Court Rules to support the curtailment of the obvious breadth of the phrase “other civil process” so as to exclude applications from its scope of coverage.

This finding is reinforced by having regard to the rationale behind the Rule, to wit, to shield the Head of State as well as judges from being harassed by frivolous or vexatious claims: see Gluck v The Governor 1947 SR 143…, cited with approval in Zimbabwe Lawyers for Human Rights & Anor v President of the Republic of Zimbabwe 2000 (1) ZLR 274 (SC)…,.

This is an aspect that the court a quo pointedly overlooked in determining the preliminary objection before it.

It thereby failed to properly exercise its discretion in the matter.

If it had applied its mind to the question, it would undoubtedly have found, that, the blanket citation of all the sitting judges of the Constitutional Court and Supreme Court was nothing less than deliberate and gratuitous vexation.

I now turn to examine the proposition which was advanced by the applicants a quo, and endorsed by the court a quo, to the effect, that, there is no requirement for leave to sue to be granted in an application made in terms of section 85 of the Constitution.

The judgment of the full bench of the Supreme Court in Zimbabwe Lawyers for Human Rights & Anor v President of the Republic of Zimbabwe 2000 (1) ZLR 274 (SC) appears to support this position.

In considering the provisions of section 24 of the former Constitution (the precursor to section 85 in the current Constitution), GUBBAY CJ stated as follows…,.:

“The fundamental purpose behind section 24(1) of the Constitution is to afford anyone who has lawful cause for complaint to come directly before the Supreme Court. Yet, the right to do so is subject to certain in-built limitations.

First, where the question as to a contravention of the Declaration of Rights was not referred by the High Court, or a court subordinate to the High Court, in terms of section 24(2), no application for the determination of such question will lie to the Supreme Court under subsection (1).

Second, the Supreme Court, in the exercise of its original jurisdiction, may, by virtue of section 24(4)(a), determine, without a hearing, any such application, which, in its opinion, is merely frivolous or vexatious….,.

This stricture is a sufficient protection against the possibility of harassment being caused to the cited respondent. Where, therefore, the relief claimed is against the office of the President, the aim of Rule 18 is recognised and implemented in subsection (4)(a).

Third, in accordance with the proviso to section 24(4), the Supreme Court may, in the exercise of its discretion, decline to entertain an application under section 24(1), or a referral under section 24(2), if satisfied that adequate means of redress for the contravention alleged are or have been available to the person concerned under other provisions of the Constitution or under any other law….,. This is precisely the same consideration material to an application for leave under Rule 18.”

The first inbuilt limitation referred to above is not directly relevant in casu, but, the second and third limitations are obviously pertinent.

They demonstrate, that, section 24(4) of the former Constitution contained specific safeguards against any direct application that was merely frivolous or vexatious or which could be resolved through the availability of other adequate means of redress. These safeguards rendered it unnecessary to invoke Rule 18 of the High Court Rules or any equivalent provision in any matter involving an application made under section 24(1) of the Constitution.

Turning to section 85 of the current Constitution, one finds, that, it does not incorporate any similar safeguards against applications that are afflicted with frivolity or vexatiousness or which are susceptible to resolution through alternative remedies.

What this means is that the application of Rule 18 of the High Court Rules, or any other equivalent, is not rendered unnecessary or redundant in the context of section 85 of the Constitution.

Therefore, the contention that there is no need for leave to sue in an application in terms of section 85 of the Constitution, because it is already catered for in that provision, is patently erroneous.

It follows, that, the decision in Zimbabwe Lawyers for Human Rights & Anor v President of the Republic of Zimbabwe 2000 (1) ZLR 274 (SC), predicated on a provision which is materially different in certain respects from the present section 85 of the Constitution, is clearly distinguishable and inapplicable in casu.

It also follows, that, the requirement of prior leave to sue, stipulated by Rule 18 of the High Court Rules, remains fully operative and enforceable in relation to any application made in terms of section 85 of the Constitution.

Additionally, it is necessary to underscore the point that access to this Court or any subordinate court under section 85 of the Constitution is subject to regulation by rules of court. This is made explicitly clear by section 85(3) which dictates that the rules of every court must provide for the procedure to be followed in cases where relief is sought under section 85(1). It is also spelt out in section 167(5) of the Constitution vis-a-vis direct access to the Constitutional Court.

One cannot institute an action or application in the High Court, or any other court, without due observance of and compliance with the Rules of that court.

The Rules inform a litigant of what is required of him to access the court concerned. If he fails to observe or comply with those Rules, he will inevitably be non-suited.

To conclude this aspect of the matter, I am satisfied, that, the proceedings a quo were fatally defective and constitute a nullity for failure to comply with Rule 18 of the High Court Rules and consequential lack of jurisdiction by the court a quo.

That, however, does not signal the end of the matter.

The question that remains is whether or not, despite the nullity of those proceedings, this Court should nevertheless proceed to canvass the merits of the application before us.

I am of the considered opinion, that, it is necessary for the Court to address and determine the merits of the application for the following very compelling reasons:

(i) First and foremost, it cannot be disputed, that, the matter is one of paramount public importance.

Whether or not the incumbent Chief Justice should continue in office to perform the functions of that office for a further 5 years is undoubtedly a question of critical public significance. The publicity surrounding that question bears ample testimony to that fact. By the same token, it is equally important that the possible extension of tenure availed to other senior judges by section 186 of the Constitution be resolved in order to obviate future controversy in that regard.

The obvious objection is that the substantive correctness of the judgment a quo is currently pending before the Supreme Court on appeal from the court a quo.

In my view, however, the pendency of that appeal, and the possibility of its being pre-empted should not detract from the over-arching supervisory jurisdiction of this Court, by virtue of section 167(3) of the Constitution, in critical constitutional matters.

Ultimately, it is this Court that makes the final decision as to whether or not any law or conduct of the President or Parliament is constitutional. And, it is this Court that must confirm any order of constitutional invalidity made by another court before that order has any force or effect.

In exercising its jurisdiction under section 175(3) of the Constitution, the Constitutional Court is not confined to purely procedural or preliminary issues that may arise for determination. In confirmation proceedings, the Constitutional Court is duty-bound to adjudicate all the relevant issues. These include not only the procedural propriety of the proceedings a quo, but, also, more importantly, the juridical correctness of the substantive findings of the subordinate court.

Moreover, section 176 of the Constitution endows this Court with the inherent power to protect and regulate its own process, taking into account the interests of justice and the provisions of the Constitution.

In all the circumstances, I am of the firm view, that, this Court should proceed to address and determine the merits of this matter, not only in order to bring it to finality but also in the interests of justice.

HB12-21 : ADHESIVE PRODUCTS MANUFACTURERS (PVT) LTD vs PARKAM ENTERPRISES (PVT) LTD (Under provisional judicial management of N. Motsi) and ASSISTANT MASTER OF THE HIGH COURT N.O.
Ruled By: DUBE-BANDA J

This application was set down during vacation, i.e. on the Motion Court for 17 December 2020.

When this matter was called, Mr Moyo, counsel for the applicant rose and made a submission that the papers were in order, and he prayed for an order in terms of the draft order. Mr Mazibiko stood up and said he was representing the first respondent.

I noted that the first respondent was not served with the notice of set down. Mr Mazibuko might have only become aware of the application because the matter was called out in his presence in the Motion Court.

I pointed out to Mr Mazibuko that the first respondent was barred and the application was not opposed.

He was not deterred.

He attacked the validity of the service of the application on the first respondent and attacked the competence of the application itself. Notwithstanding that he was further advised that the first respondent was barred, he argued that he was raising points of law, and, in his view, a court cannot grant such an order as sought by the applicant.

On his part, Mr Moyo contended that the first respondent was barred for want of filing a notice of opposition, and the application was not opposed, and he submitted that his papers were in order and prayed for an order in terms of the draft.

After briefly hearing both counsel, I granted the order sought, couched in the following terms:

“1. The provisional judicial management order issued on the 1st day of March by this court, under cover of HC3455/15 be and is hereby discharged.

2. Nyasha Motsi, in his personal capacity, be and is hereby directed to pay applicant's costs of suit on an attorney and client scale.”...,.

The brief relevant facts of this matter are, on the 1st of March 2016, the first respondent was placed under provisional judicial management. This is an application for the discharge of the provisional judicial management order.

The anchor of this application is that the order was obtained fifty-six months ago, and, it has not been confirmed.

It is contended, that, the order is a sham designed and calculated to shield the first respondent from paying its debts.

The applicant then sued out this court application on 12 August 2020. A copy of the application was served by the Sheriff, on the first respondent, on 9 September 2020. Again, another copy of the application was served by a clerk in the employ of the applicant's legal practitioners on 8 October 2020.

There is proof that the Assistant Master of the High Court was served with a copy of the application.

The first respondent, on the papers before me, had not filed a notice of opposition.

The Assistant Master filed a report, and made the point, that, she was not opposed to the order sought by the applicant, and made the point that the provisional judicial management order must be taken by the court as dead.

I then took the view that the first respondent was barred for failure to file a notice of opposition and opposing affidavit within the time allowed by the rules of court, then, the application was not opposed.

The bar against the first respondent, in such circumstances, is automatic and brings about a default: Rule 233(3) of the High Court Rules 1971 provides that a respondent who has failed to file a notice of opposition and opposing affidavit in terms of subrule (1) shall be barred.

I took the view, that, in this application, Mr Mazibuko had no right of audience before court, because the first respondent was barred. The effect of a bar is that while it is in operation, the party barred shall not be permitted to appear personally, or through a legal practitioner, in any subsequent proceedings in the action or suit; except for the purpose of applying for the removal of the bar: see Rule 83(b) of the High Court Rules 1971.

It is clear from Rule 83(b) of the High Court Rules, that, once a party is barred, the matter is treated as unopposed unless the party so barred makes an application before that court for the upliftment of the bar.

It is also clear, that, in making the application to uplift the bar, the party that has been barred can either file a chamber application to uplift the bar, or, where this has not been done, the party can make an oral application at the hearing: see Grain Marketing Board v Muchero SC59-07.

Mr Mazibuko was not applying for the removal of the bar. He was attacking the application.

In fact, I found his conduct somehow unacceptable, that, after I had pointed out to him that the first respondent was barred, and that the application was therefore not opposed, he persisted in argument.

After considering a number of factors, I refrained from calling him to order.

I take the view, that, such conduct is a deviation from the normal practice; it is inappropriate and unnecessarily belligerent towards the court, and it serves no useful purpose in litigation.

In the result, in deciding this application for default judgement, I did not factor into the equation Mr Mazibuko's submissions. I concluded, that, the respondents, having been duly barred in terms of the rules of the court, and not having made an application for the upliftment of the bar, the application was unopposed.

I took the view, that, the papers before me were in order, and the order sought was competent, I then felt inclined to grant the order in terms of the draft.

SC86-14 : W. CHOMUREMA and E. MUZOKOMBA vs TELONE
Ruled By: GWAUNZA JA

In chambers in terms of Rule 5 of the Rules of the Supreme Court 1964.

The applicants are appearing before a judge of this Court for the third time, their earlier applications having been dismissed on procedural grounds.

Essentially, in this, and the previous two applications, the applicants are requesting this Court to give to them leave, which they perceive to have been denied by the Labour Court, to file a belated appeal against their dismissal from employment with the respondent.

In this quest, the two have made tracks back and forth between the Labour Court and this Court, with the result that the matter is now hopelessly entangled in procedural niceties.

It became evident to me that this 'tangle' had to be unravelled first before a way forward could be ascertained. This is particularly so given that the legally unrepresented, but determined, applicants are pressing to have their day in court, albeit, they complicated matters further by filing lengthy and repetitive submissions with each application they brought before both the courts.

Accordingly, after hearing the parties, and, in order to enable me to properly determine the matter, I directed them to re-construct the record and arrange all the applications, and other papers, in the order they had been filed. I indicated I would then peruse the record and give any directions that may be necessary to unlock the process and have the matter move forward.

This would, at the same time, point the applicants to any options that may be open to them in terms of the way forward.

Chronicled below, in conveniently numbered paragraphs, are the relevant facts of the matter, as well as the sequence of events, in so far as I have been able to make them out. I have interspersed the narration/analysis with relevant observations or findings of my own;

1. The applicants are former employees of the respondent; they were dismissed on misconduct charges of theft and fraud in 2009.

2. Having unsuccessfully pursued all internal remedies for redress, they appealed to the Labour Court, on the 30th of October 2009 against their dismissal. In a detailed judgment, the Labour Court dismissed the appeal having found that the two had been properly charged, convicted, and dismissed.

3. The two resolved to appeal to this court but failed to apply to the Labour Court for leave to appeal within the 30-day period which is stipulated in that court's rules.

This, in my view, is where their problems started.3. The two resolved to appeal to this court but failed to apply to the Labour Court for leave to appeal within the 30-day period which is stipulated in that court's rules.

This, in my view, is where their problems started.

4. On the 16th of March 2010, some sixty-six days beyond the stipulated time limits, the applicants filed an application in the Labour Court titled “APPLICATION FOR LEAVE TO APPEAL TO THE SUPREME COURT.”

The relief sought, according to their draft order, mirrored the same title.

A look at the founding affidavit shows that the applicants appreciated the fact that their application would be filed out of time, and that, therefore, they would need to secure condonation of the late filing of the application.

This is evidenced by paragraph (viii) of the founding affidavit, which reads as follows;

“I humbly urge this Honourable Court to condone the delay in this application for leave to appeal to the Supreme Court on the basis that:

(i) I travelled to my rural home ending up in too much delay of noting an appeal (sic).

(ii) As a self-actor, I took too long to find the Labour Court Rules that I can prepare my application.” (sic)

The request for condonation, apart from not being reflected in the title of the application, was, in addition, not incorporated into the draft order.

As indicated later in this judgment, the Judge a quo took the view, that, no application for condonation was before the court.

5. Nevertheless, the Judge issued the following order on the 23rd of June 2010;

“The application for leave to appeal to the Supreme Court be and is hereby denied on the basis that it was out of time and the reason for the delay was not a reasonable one.”…,.

I find this order to be incomprehensible in a number of respects;

(a) Having taken the view that there was no proper application for condonation of the late application for leave to appeal to the Supreme Court, it is not clear why or how the court could have proceeded to 'dismiss' the application for leave to appeal to the Supreme Court.

(b) The reasons given for the 'dismissal' of the application for leave to appeal to the Supreme Court are reasons properly associated with an application for condonation of failure to comply with the rules of the court;

(c) While the reasons might have suggested that the Labour Court had in fact entertained an application for condonation of the late filing of the application for leave to appeal, the court dispelled this notion by specifically stating in its order, that, it had dismissed the application for leave to appeal to the Supreme Court; and

(d) Even were it to be taken that the court entertained the application for condonation, the absence of an order specifically granting such condonation establishes otherwise.

6. What is evident, though, is that the Labour Court did not consider the merits of the application for leave to appeal to the Supreme Court. Indeed, it could not have properly done so without first condoning the late filing of such an application. The applicants were barred, and, at that point in time, out of court.

The applicants should have filed a composite application;

(a) For condonation of the late filing of the application for leave to appeal; and

(b) For leave to appeal to the Supreme Court.

Because they did not do so, the application for leave to appeal to the Supreme Court was not properly before the Labour Court.

7. I am of the firm view, that, instead of dismissing the application for leave to appeal to the Supreme Court for the reasons it gave, the Labour Court should have properly struck the application off the roll.

It is also my opinion, that, since a court cannot dismiss what is not before it, the Labour Court's order of 23 June 2010, was incompetent.

8. Had the Labour Court struck the matter of the roll, the applicants would most likely have been alerted to the need to file a proper application with the same court, for condonation, together with one for leave to appeal to the Supreme Court.

9. As this did not happen, the applicants, who felt aggrieved by the decision 'dismissing' their application for leave to appeal, and had no reason to believe the order to be incompetent, mistakenly, but understandably (being legally unrepresented), filed a chamber application before this court on the 19th of July 2010, under case number SC175/10.

They sought the leave of a Judge to appeal to it (purportedly) in terms of section 92F(3) of the Labour Court Act (“the Act”).

10. The application was dismissed in chambers by GARWE JA on the 14th of December 2010, without considering the merits thereof. This was on the basis, that, this Court could not consider the application for leave to appeal to it before:

(i) Condonation for the late filing of that application in the Labour Court had been obtained; and

(ii) The leave of the Labour Court had been properly sought and denied.

11. After the dismissal of their application by a Judge of this Court, significantly, not on the merits, as indicated in paragraph 9, the applicants approached the Labour Court on the 21st of December 2010 and filed a composite application for -

(i) Condonation of the late filing of the application for leave to appeal to the Supreme Court against the Labour Court's order of 30 October 2009; and

(ii) Leave to appeal to the Supreme Court.

12. On the 21st of February 2011, the Labour Court made a ruling that it could not 'plough the same road' as it had already made a decision on that particular issue. It made the following order;

“1. The Court has dealt with the application for leave to appeal and dismissed it on 23 June 2010;

2. The court is thus functus officio and must dismiss the present application;

3. The application is accordingly dismissed.”…,.

13. It is my considered view, based on the foregoing analysis, that the Labour Court was misguided in its view that it had already heard and determined the application for leave to appeal to this Court. As stated above, and despite the wording of its order of 23 June 2010, the court had NOT properly heard nor determined the application for leave to appeal against its decision of 30 October 2009.

14. In stating this, I am fully cognisant of the fact, that, I am not sitting as an Appeal Court to consider this matter.

Accordingly, as a single judge in chambers, I cannot make, and indeed, should not be taken to be making, a final pronunciation on the matter.

Such a task would properly be within the preview of an appeal bench of this Court.

With this in mind, I nevertheless hazard to express the view, that, contrary to its finding, the Labour Court was, in effect, not functus officio and should properly have entertained the application filed by the applicants on 21 December 2010.

It seems to me, that, the Labour Court judge failed to appreciate the fact, that, the applicant's seemingly repeated filing of the same application was traceable, in part, to the court's failure from the onset (i.e. 16 March, 2010) to indicate to the applicants (by striking the matter off the roll) that they could not apply to it for leave to appeal to the Supreme Court without first seeking its condonation of the late filing of such application.

That the court fully appreciated that this was the correct sequence of events to be followed, is evident from the following observations contained in the judge's reasons for the decision in the question;

“The reason (for dismissing the application of 21 December 2010, for condonation and for leave to appeal) are that on 23 June 2010 an application for leave to appeal was dismissed because it was filed out of time. At that time, no application for condonation was made….,.

The two applications that were filed sought to resuscitate a matter that had been dealt with to finality - at least before this Court. Should I condone the application for leave that has already been denied? I could not consider the second application for leave to appeal because I had already denied it. It was water under the bridge. I could not deal with the application because it was ill timed. It ought to have preceded the first application for leave which I had already dismissed.”

15. A couple of pertinent observations can be made from this rather unclear reasoning.

(i) Firstly, the judge a quo properly realised that the first application by the appellants needed to be preceded by an application for condonation of its late filing. The learned judge, however, then fell into the error of not fully appreciating the implication of this default vis a vis the application for leave to appeal to the Supreme Court.

This was that, absent an application for condonation of late filing of the application for leave to appeal, there was nothing before the court to dismiss.

The later application could not stand on its own, being premised on nothing.

(ii) Secondly, since the dismissal in question was, in my view, incompetent, there would have been nothing to prevent the court from hearing the two applications.

Thus, nothing was dealt with 'to finality'.

16. Be that as it may, the applicants did not, as they may have done, take the requisite steps to appeal to this Court against the Labour Court's finding that;

(i) It was functus officio; and

(ii) That, it had already dealt with the application for leave to appeal to the Supreme Court.

17. The applicants, instead, came back to this court seeking an order for leave to appeal against the court a quo's decision on the main dispute.

18. Needless to say, this application was repetitive and therefore improper.

The ground upon which the first application had been dismissed, that is, absence of condonation by the Labour Court, was still in point.

19. The application was heard and dismissed by GARWE JA on 17 November 2011. As a mark of its displeasure, this Court ordered that the applicants pay costs on the higher scale.

20. To the extent that this court had earlier dismissed the same application, albeit, and also without considering the merits, it could have been argued that the matter was res judicata and that this court was functus officio.

The judge, however, did not make a pronouncement nor issue an order to this effect.

21. The appellants apparently felt they could still pursue the dispute, and, in a manner suggestive of their now being totally confused and entangled in a true web of procedural technicalities, the relentless applicants went back to the Labour Court on 7 December 2011 and filed an application with this somewhat confusing title;

“CHAMBER APPLICATION FOR CONDONATION FOR LATE FILING OF AN APPLICATION FOR LEAVE TO APPEAL AGAINST THE DENIAL OF CONDONATION AND APPLICATION FOR LEAVE TO APPEAL AGAINST THE DENIAL OF CONDONATION FOR LEAVE TO APPEAL TO THE SUPREME COURT”

What immediately becomes evident from this title is the fact, that, the application in question was premised on the view, that, an application for condonation of the late filing of an application for leave to appeal to the Supreme Court had been heard and refused by the Labour Court.

The opposite was in fact the case.

The learned judge, in the excerpt from her judgment that is cited in paragraph 14 above, made it very clear why she was not going to entertain such an application. Nor did she, in the end, do so.

The application was therefore misguided.

22. Having, again, found no satisfaction from the Labour Court, the applicants have now, yet again, approached this Court with this application, which is no less misguided than the last one they made before the Labour Court (see above).

The application brings nothing new to this Court unless it is to demonstrate the applicants sheer determination to pursue the matter to what they perceive to be its logical conclusion - whatever pitfalls may stand in their way.

As this Court has entertained the same matter several times, it is my view, that, the court is now functus officio.

The dispute has gone round in circles for a period of over five years and there must be finality to litigation.

The application now before me is, in any case, not sustainable in its current form.

Accordingly, the application is dismissed with costs.

HH435-15 : LADRAX INVESTMENTS (PVT) LTD vs IGNATIOUS CHIRENJE and RUTENDO CHIRENJE
Ruled By: TSANGA J

On 8 October 2014, I granted the applicant's claim for an eviction order against the respondents stemming from a sale in execution that had been confirmed by the Sheriff and where transfer of the property had already taken place.

I also dismissed the respondent's application for upliftment of bar for reasons I here upon elucidate.

The background facts are these:

The applicant bought the property through a Sherriff's sale for $116,000. The property is described as Subdivision A, Lot 16, Block B of Avondale, held under Deed of Transfer Registration No.4835/05.

The sale was in execution of a debt owed to Genesis Bank by the first respondent and his business partners and for which the property belonging to both respondents had been used as security.

Mr Maxwell Kufakunesu Chisvo was declared the highest bidder for the property on 18 March 2013.

On 19 March 2013, the second respondent applied to have the sale set aside on the basis that the price realised was unreasonable, given that their own evaluation was for $215,000.

The second respondent's application, which was in terms of Order 40 Rule 359, also contained various averments regarding the impropriety of the security that the Bank had obtained in the initial instance.

The application was dismissed in July 2013 and the sale was confirmed since the judgment debtor had failed to produce the buyer for this higher price.

Issues relating to any impropriety regarding the obtainment of the initial security were said to be matters for the court.

The property was duly transferred into the applicant's name in January 2014, which was some six months later.

On 22 January 2014, the applicant gave the respondents notice to vacate the premises.

On 24 January, the respondents practitioners wrote to the applicant's representative advising them of pending proceedings to challenge the terms on which the property had been acquired.

It was the applicant's position, that, the sale was no longer conditional but a confirmed sale, and, accordingly sought eviction on 10 February 2014 and holding over damages.

The respondents filed a notice of opposition, on 25 February, in which they argued, that, the highest bidder was one Mr Kufakunesu Chisvo and that they were surprised that the property was then transferred to Ladrax Investments (Pvt) Ltd.

Their primary objection was that the applicant is an imposter.

The applicant filed its answering affidavit, on 25 February, explaining that the applicant is a company whose directors are Mr Kufakunesu Chisvo and his wife, Joyce Chisvo.

He further explained, that, Mr Chisvo had made a request for the property be transferred into the applicant's name, which wish was acceded to by the Sherriff.

On 24 April 2014, the applicant filed its heads of argument. This is not disputed (the certificate of service confirms says that these were served on the Respondent on the 24th of May 2014. However the Registrar's stamp on proof of service reads 23rd of May so the assumption is that 24th of May is most likely a typing error and should have read 24th April which was when the heads were filed with the court).

It is also not in dispute, that, the respondents failed to file their heads of argument and were therefore barred.

The relevant Rule of the High Court, 1971 reads as follows:

“Rule 238(2a)

Heads of argument referred to in subrule (2) shall be filed by the respondent's legal practitioner not more than 10 days after the heads of argument of the applicant or excipient, as the case may be were delivered to the respondent in terms of sub-rule (1); provided that –

(i) No period during which the court is on vacation shall be counted as part of the ten day period;

(ii) The respondent's heads of argument shall be filed at least five days before the hearing.

(2b) Where heads of argument that are required to be filed in terms of subrule (2) are not filed within the period specified in subrule (2a), the respondent concerned shall be barred and the court or judge may deal with the matter on merits or direct that it be set down for hearing on the unopposed roll.”

On 8 October 2014, some five months after the filing of the applicant's heads, the matter came before me for hearing.

The respondents, being barred, they sought to make an application for upliftment of the bar through their practitioner…,.

He stated, that, the respondents case for upliftment of the bar is based on prior proceedings in which the allegation of fraud were made. He clarified to the court, that, when his firm received instructions from the respondents, its view was that an independent assessment of the allegations was necessary. As such, he said they were reluctant to push the matter without independent evidence. He went on to state, in his quest, that, a report had since been produced, on 25 September 2014, which would now form the basis of the application for upliftment of the bar.

It is necessary here to say a few words about the nature of those allegations as gleaned from the papers filed of record.

The respondents made allegations of fraud in the acquisition of the loan by one of the husband's business partners, particularly in that he had forged the second respondent's signature in order to register the bond.

The respondents had purported to bring two applications against Genesis Bank - one for condonation of late filing for rescission of the default judgment that the Bank had obtained resulting in the sale (HC973/13), and, another, for the actual rescission of the judgment itself (HC11069/11).

However, the respondents, having failed to pursue these applications to their logical conclusion, the documents filed of record indicate that Genesis Bank had brought chamber applications to have these matters dismissed for want of prosecution.

Also, no report had been made to the police concerning the alleged fraud.

The applicant was naturally opposed to the upliftment of the bar, arguing that the reasons could not be ventilated in an oral application.

Counsel for the applicant relied on the case of Kudakwashe Nyakambangwe v Jaggers Trador (Private) Limited HH146-03 which drew on HERBSTEIN and Van WINSEN, The Civil Practice of the Supreme Court of South Africa, 4ed…, for the considerations that the court takes into account in considering an application for condonation which include:

“The degree of non-compliance; the explanation for it; the importance of the case; the prospects of success; the respondent's interest in the finality of his judgment; the convenience of the court; and the avoidance of unnecessary delay in the administration of justice."

Where a respondent has been barred for failure to files heads of argument on time, Rule 238(2b) of the High Court Rules allows a court to deal with the matter on the merits: see GMB v Muchero 2008 (1) ZLR 216 (S) 216…,.

Counsel for the applicant therefore emphasised, that, no police report had been made against Mr Christopher Mawere, who is supposed to have forged the signatures. He also pointed out the first respondent had admitted to receiving US$94,000 to acquire mining equipment which is the reason why they bonded their property.

He maintained, that, the quest for upliftment of bar is an abuse of court process as the respondents have no case at all.

He also dismissed the argument by the respondents, that, the Sherriff should have proceeded against movable property first maintaining that it is a long standing practice to declare hypothecated property executable: see Meda v Homelink (Pvt) Ltd HB195-11.

His position was that it was unreasonable, under the circumstances, for the respondents not to have filed heads of argument.

Although an application for upliftment of the bar can indeed be made at the hearing; however, whether or not a party will be permitted to file their substantive application for the court's consideration, and for assessment by the other party, is not a given and should not be approached as such.

In my view, in light of the facts of the case, this was not a case where an application could simply be made casually on the date of the hearing without grave prejudice to the other side.

The applicants were seeking eviction and the respondents were well aware of this fact.

When they did not file their heads in accordance with the Rules, they were very much aware that they were barred; only to wait to come to court, on the date of the hearing, to tender an explanation that they were, all along, carrying out investigations to strengthen their case.

Furthermore, no correspondence came from them.

Even when they had gathered the information which they thought would bolster their case, they were still dilatory in seeking to bring it to the attention of the court.

Where an applicant has all the time in the world to make a substantive application for the court to consider, and does not do so, he only has himself to blame if the court then refuses to grant his application for non-compliance with the Rules.

My reasoning, in dismissing the respondents application for upliftment of the bar, is very much in line with the sentiments expressed by MAKONESE J in Ndlovu v Guardforce Invstms (Pvt) Ltd & Ors HB03-14.

He re-emphasized the need for legal practitioners to operate within time limits and in terms of laid down procedures, whose purpose is for litigants to know when they are expected to act.

As he explained, when time limits have not been observed, it is the duty of the practitioner to give a credible and convincing explanation why he failed to act timeously.

He also emphasised, that, the court may only excuse failure to act where the explanation given is credible. Significantly, as he stated, the courts should decline to exercise judicial discretion where the explanation proffered is not credible, even where the fault of the legal practitioner will have adverse consequences on the litigant.

I declined the application as the explanation as to why the application was being made at the eleventh hour was far from satisfactory.

There appeared to me to be a reckless and deliberate non-compliance with the Rules as the respondent had been aware, from as way back as April 2014, that, they were under an obligation to file heads.

In light of the facts of the matter, it seemed clear to me, that, the applicant would be prejudiced in the main matter and would not be compensated with a suitable order as to costs, largely because, up to the date of this hearing, the respondent had thus far failed to show any valid reasons for objecting to the sale and to the eviction.

I was not convinced, that, the application for upliftment of the bar was not being made with the intention of delaying the realisation of the applicant's claim for eviction.

If indeed a credit worthy report was now available, there was absolutely no reason why it could not have been the basis for making a chamber application for upliftment of the bar before 8 October.

Against the backdrop of the totality of the above facts, the application for upliftment of the bar clearly lacked merit.

The degree of non-compliance with the Rules, in my view, was inexcusable.

The explanation for the non compliance lacked credibility since the respondents did not even proceed to treat the “report” it had now purportedly obtained with the urgency that it deserved by making an application for upliftment of the bar - assuming it bolstered their case.

Having purchased the property, and transfer having been effected, the applicant clearly has an interest in the finality of his judgment.

In light of the above, I was of the view, that, there was no justification for delaying the administration of justice in the applicant's favour.

It was for the above reasons that I granted the order as follows:

1. The respondent, being barred for failure to file heads of argument, the Notice of Opposition is accordingly struck off.

2. The application, by the respondents, for upliftment of bar, is dismissed.

3. The respondents, and all those who claim title through them, be and are hereby ordered to vacate a certain Subdivision A of Lot 16 Block B of Avondale, also known as No.50 Broadlands Rd Emerald Hill, Harare within 48 hours of being served with Writ of Execution.

4. In the event of the respondents failing to abide with paragraph 3, the Sheriff be and is hereby ordered to evict the respondents and all those who claim title through them.

5. The first and second respondents, jointly and severally, one paying the other to be absolved, be and are hereby ordered to pay costs of suit on an attorney and client scale.

HH330-16 : CITY OF HARARE vs TENDAI MASAMBA
Ruled By: MAFUSIRE J

In this matter, the citation of the respondent as “Tendai Susan Masamba” [“Ms Masamba”] was a misnomer.

Her surrogate, one Ignatius Masamba [“Masamba”] was the litigant the applicant [“the City of Harare”] was after.

That was borne out by the body of the application. Tendai Susan Masamba had nothing to do with the abuse the applicant complained of. In fact, the original index to the original court application cited Ignatius Masamba as the respondent.

That is why when counsel for the City of Harare moved for an amendment, I had no hesitation granting it.

The application was one for a decree of perpetual silence. It had to come.

Ignatius Masamba has been extremely litigious. He has abused some dubious general power of attorney granted to him in 2011 by Tendai Susan Masamba. He has launched suit after suit in respect of some apartment in Harare, namely, 4 Residell Court, 56 Selous Avenue [“the flat”]. In some cases, he would cite Tendai Susan Masamba as the applicant or plaintiff; invariably describing her as “…, my sibling kid sister…, who is domiciled overseas.”

It has not mattered to him that this court, in Tendai S Masamba v Zimbabwe Electricity Transmission and Distribution Company [Pvt] Ltd HH411-15 [“ZETD”], has ruled, that, that power of attorney did not authorise him to institute and prosecute litigation.

In other cases, Ignatius Masamba has just gone it alone; instituting and prosecuting litigation in his own name without restraint.

Of the flat, he invariably says in his bombastic affidavits: “Flat 4, Residell Court, 56 Selous Avenue…, is a usufruct [sic] to me. The rental income is mine…,.”

At the last count, there had been 26 cases instituted in this court by, or in respect of, or against Ignatius Masamba. Of that number, over 92% were to do with the flat. The schedule below refers to those cases. That is what I managed to dig up from the system.

Case No.: Name of the Parties: Nature of the Claim

1 HC 6553/11 ZETD v Tendai Masamba Re: Outstanding power bill

2 HC 7144/11 Ignatius Masamba v City of Harare Re-connection of water supply

3 HC 3975/12 Tendai S. Masamba v ? Damages against Associat'n

4 HC 6202/12 Ignatius Masamba v City of Harare Interdict & other multiple remedies

5 HC 11009/12 Ignatius Masamba v City of Harare For re-connection of water supply

6 HC 11447/12 Ignatius Masamba v Guest & Tanner Re: Damages for breach

7 HC 14500/12 Ignatius Masamba v Contact Real Est Re: Damages for breach

8 HC 34448/12 Tendai S. Masamba v ZETD Leave to appeal

9 HC 20/13 Tendai S. Masamba v A Chigwanda Re: Damages against Associat'n

10 HC 3721/13 Tendai S. Masamba v Obgla Sales Re: Damages against Associat'n

11 HC 6235/13 Tendai S. Masamba v City of Harare Rescission of judgment

12 HC 9022/14 Ignatius Masamba v Robert Root Re: Damages for breach

13 HC 9428/14 City of Harare v Tendai S. Masamba Decree of perpetual silence

14 HC 965/15 Ian F. Masamba & Anor v ZIMSEC Re: Exam results

15 HC 6051/15 Ian F. Masamba & Anor v ZIMSEC Re: Exam results

16 HC 2368/15 Ignatius Masamba v Secretary-JSC Re: Damages for incompetence

17 HC 7286/15 Ignatius Masamba v Guest & Tanner Re: Damages for breach

18 HC 9373/15 Ignatius Masamba v Concept Real EstRe: Damages for breach

19 HC 9398/15 Ignatius Masamba v Secretary-JSC Re: Damages for incompetence

20 HC 9542/15 Ignatius Masamba v ZETD Rescission of judgment

21 HC 9824/15 Ignatius Masamba v Concept Real EstRe: Damages for breach

22 HC 9825/15 Ignatius Masamba v Secretary-JSC Re: Damages for incompetence

23 HC 10937/15 Ignatius Masamba v Secretary-JSC Application for recusal

24 HC 2822/16 Ignatius Masamba v ZETD Rescission of judgment

25 HC 2826/16 Ignatius Masamba v ZIMSEC Rescission of judgment

26 HC 2402/16 Tendai S Masamba v ZETD Rescission of judgment

Ignatius Masamba's behaviour has been truly weird.

He has clogged the system with groundless litigation. Some of the cases have been instituted in the Magistrates Court and have ended up in this court on appeal. Others have found their way to the Supreme Court.

There are many disturbing features about Ignatius Masamba's suits.

He pursues essentially the same remedy in several cases. It seems it all started with some water bill raised by the City of Harare in respect of the entire apartment block. Among other things, Ignatius Masamba felt the bill was inflated. The situation was compounded by the City of Harare going on to disconnect the water supply.

Since then, no one has rested. It has been a charade.

In almost all the matters concerning him, Ignatius Masamba has literally defaced the records. He would file endless volumes of incomprehensible verbiage. He would follow up with even more of it, purporting to amend or replace or withdraw or clarify previously filed verbiage. In the present matter, he has literally turned the record upside down by, among other things, filing and binding his own court application next to the original one. He has filed numerous other incomprehensible documents.

Said by counsel for the applicant, in his Heads of Argument, quite aptly:

“[Ignatius Masamba] also does not know when to stop. Once he institutes a suit, papers keep falling like confetti at a wedding.”

Almost all of Ignatius Masamba's documents are annotated in ink. Some have been crossed out. Others have completely been defaced. The whole record has been disfigured.

That is the state of most of the other records.

In this particular matter, Ignatius Masamba purported to bar the applicant. He proceeded to set the matter down on the unopposed motion roll - three times in succession. The first time the matter was postponed. The second time, I happened to be presiding. I struck it off the roll. He re-enrolled it for the third time. The presiding judge struck it off the roll again.

Eventually, the matter was properly set down by the City of Harare.

Apart from this matter, and the several others by him against the applicant, Ignatius Masamba has also sued several other persons or bodies, including estate agents.

The suits against the estate agents have all been about alleged mismanagement of the flat.

There is a Residents Association at the apartment block. It too has been hit by several suits for one fault or another.

Tendai S Masamba v Zimbabwe Electricity Transmission and Distribution Company [Pvt] Ltd HH411-15 was for damages for alleged inflated power bills to the flat.

Ignatius Masamba has also sued the Judicial Service Commission [“the JSC”]. It has been accused of employing incompetent magistrates. One of them had dismissed one of his claims against the City of Harare in respect of the flat. To Ignatius Masamba, that was an unforgivable sin. The magistrate was condemned for having failed to grasp the nature of the claim.

Other cases that have come before this court, either on first instance or on appeal, have almost always been dismissed for lack of substance or coherence.

Ignatius Masamba would react by filing further documents. However, these would all be scurrilous gibberish. In some cases, he would react by applying for rescission of judgments, despite that in none of them would the judgments have been given in default.

Ignatius Masamba has also blasted the Judicial Service Commission (JSC) for employing incompetent judges that pander to the whims of political parties. In most of his affidavits or heads of arguments or letters or other writings, he has portrayed himself as a shrewd politician who is on course to land the post of presidency for Zimbabwe.

Ignatius Masamba's other reaction to unfavourable outcomes in his cases has been to write scurrilous letters of complaint to individual judges, copying them to all manner of administrative authority, like the Judge President, the Chief Justice, and the Secretary for the Judicial Service Commission (JSC). In most such letters, he has sought the recusal of all such judges as would have dismissed his cases. I have counted up to 12. That is roughly 85% of the compliment of all the judges at the Harare station.

Sometimes judges have advised Ignatius Masamba to seek legal assistance in formulating and prosecuting his claims.

However, such advice has been snubbed with disdain.

He has argued that he is a professional in his own right, having acquired some CIMA [Chartered Institute of Management Accountants] qualification, which he says had law as a component.

At one time, he was granted in forma pauperis assistance.

But, he soon came back to file further intemperate documents against some relatively senior legal practitioner. He has also blasted the Legal Aid Directorate for a multitude of sins.

In Ignatius Masamba v Secretary, Judicial Service Commission HH978-15…, MUNANGATI- MANONGWA J said of Ignatius Masamba:

“Finally, whilst it is a constitutional right to be able to approach the courts to obtain relief, self-actors must know that the practice of law is a very specialised area which requires deep knowledge and skill. Simply reading law books at random does not equip one with the requisite knowledge. Legal assistance should be sought if one is to comply with the rules and file appropriate papers. The plaintiff in this matter fell into a pit by his mere belief, that, he can handle his claim without legal assistance. As a result, the defendant has had to be put to expense in defending fatally defective proceedings where the plaintiff filed numerous documents without restrain[t] some being withdrawn. This is a case which warrants that an order of costs on a legal practitioner [and client] scale be granted to discourage such conduct which is unnecessary and costly.”

Ignatius Masamba's reaction was swift and belligerent.

Giving notice to file an application for review, he launched a blistering diatribe against the learned Judge, stating in part:

“5. The hon justice Munangati arguably is a biased judge and is extremely provocative of her and she must be stopped in her tracks. My pillar documents disclose a cause of action. And I am very angry.

6. Her judgment must have been based on the pillar or milestone documents ie the Summons, Notice of Amendment, Amended Plaintiff's Declaration, Response to Request for Further Particulars and my Heads of Argument related to the Defendant's Exception vis a vis what the Defendant filed, not partly due to peripheral filings in the form of letters written by me after judgment had been reserved. The filings about which she used the phrase 'without restraint'. Which court rule is she relying on?

7. This is why it feels the Judicial Service Commission seems poorly led because we cannot have such an arguable prevalence of what looks unmitigated corruption, incompetence, and political interference.”

In one typical letter seeking a judge's recusal, Ignatius Masamba wrote:

“3. The inference is that justice Muremba possibly is politically motivated as a probable political hack judge in a probable facelessly operating malevolent confederacy attributable possibly either to ZANUPF or possibly the MDC T if possibly not both by dint of a probable or arguable whipsaw, or possibly she is corrupt, or still possibly she is incompetent or acted validly if there is justification extended in confutation by her.

4….,.

5….,.

6. There is a spinster, Mercy, her phone is…,; who I have spoken and texted to from the numbers given below who I thought I would marry, but it seems the possibility or proper communication is being blocked possibly politically possibly by dint of a whipsaw unless I am misconceived about the true position.

7. There was an incident that happened when I was with her where she is self-employed that seems to confirm the blocking scam. She is not the only one. There are many other spinsters before her which affairs between them and me were blocked who could specify by name just like the many court cases which it seems judges have temporarily blocked.”

Ignatius Masamba has exhibited extreme abnormalities of behaviour.

For example, in one suit, he features with his son, both suing the Zimbabwe Schools Examination Council [“ZIMSEC”]: see Ian Farai Masamba & Anor v Director, ZIMSEC HH969-15.

But, it was all his doing. The son was just a convenient front. He never came to court.

The claim was plainly weird. It was for a staggering US$1.4 million allegedly as damages for the poor results obtained by the son in the Ordinary and Advanced Levels.

The claim was couched as follows:

“Professional negligence for mental suffering US$1,200,000 payable half and half to the first and second plaintiff's and defamation-libel payable to the first plaintiff US$200,000 all in all being US$1,400,000.”

The cause of action, in respect of the son, the first plaintiff, was pleaded as follows:

“(i) Breach of contract because the first plaintiff paid exam fees for a fit and proper result; and

(ii) The omission or failure to issue fit and proper [or competent] results; and

(iii) The unfair and provocative discriminating results in November 2006 and November 2008 diets which resulted in damage of mental suffering directly as a result of the defendant's carelessness.”

For himself, as the second plaintiff, the cause of action was pleaded as follows:

“The second plaintiff is suing for the carelessness and deliberate act by the defendant of having to watch ghastly and inexplicable subtle torture of his son as well as being his home-based tutor being denied his exam results in the specified years in what looked unprincipled political corruption which basically resulted in financial sabotaging circumstances and a forced wastage of money. The second plaintiff was also greatly physically inconvenienced.”

In upholding the exception taken by the defendant against such meaningless verbiage, MUNANGATI-MANONGWA J lamented as follows…,.:

“In as much as individuals have constitutional rights to bring whatever claims they have to the courts for adjudication, it is necessary to ensure that processes comply with the rules of court and that they are fully and legally informed regarding the decisions to take legal action. This claim borders on abuse of legal process as the second plaintiff, on his behalf and that of the first plaintiff, unprocedurally filed numerous voluminous documents at will including amendments to other amendments, and wrote several letters to the Registrar which documents had to be read by defendant and the court. Some of the documents did not even make legal sense, a typical example being a notice of withdrawal filed…, well after this matter had been argued and judgment was being prepared, which notice reads as follows:

'Take notice that 2nd Plaintiff is giving notice to withdraw this matter because the 1st Plaintiff was in default of plea. With no order as to costs as 2nd Plaintiff believes the defendant had been barred.'”

There is little distinction between Ignatius Masamba's writings and his oral submissions. They are both foul.

By his own admission, he suffers from an undisclosed mental ailment.

A common feature, in his myriad of cases, includes a claim for damages for mental suffering.

In one of the letters for recusal, he has complained of hearing the amplified voice of his former girlfriend. He wrote:

“9. When I stop visiting I begin hearing an amplified voice similar to hers almost incessantly lamenting saying: 'So I have been rejected. I did not know it will make him unhappy. If he comes I shall not do it again.'

10. But when I go the treatment never changes as if she probably is being manipulative or trying to free herself and me according to what she may know. And so on and on, so much so that, for me the side effects have become an incubus that must be rid of because and if the voice is hers it seems she is being politically intimidated and the amplified voice I hear from afar seems as if to confirm that she is being intimidated.”

Courts of justice are open to all. Section 69[3] of the Constitution says that every person has the right of access to the courts, or to some other tribunal or forum established by law, for the resolution of any dispute.

But, this right is not absolute.

In exceptional cases, the courts will draw the line. They will shut their doors. They have an inherent right and power to prevent an abuse of their processes. They have inherent powers to protect their integrity.

Frivolous, vexatious, or burdensome litigation; incessant lawsuits that churn out pesky bills of costs which remain unpaid; dirty hands; abuse of judicial officers in any manner; contempt of court; non-disclosure of material facts, and so on, are some of the intolerable infractions that may lead the courts to shut their doors.

The closure may be temporary. But it can be perpetual. It all depends on the circumstances.

The doors may not be re-opened without leave.

INNES CJ put it this way in Corderoy v Union Government [Minister of Finance] 1918 AD…,.:

“Where there has been repeated and persistent litigation between the same parties, on the same cause of action, and in respect of the same subject matter, a defendant should not be driven to file repeated pleas of res judicata, or to make a succession of applications to stay proceedings where prior costs have not been paid.

I think he is entitled to more effectual protection against long-continued unsuccessful onslaughts in respect of the same dispute. Such protection could only take the form of a general order curtailing, in some respects, the plaintiff's ordinary rights of litigation in that matter.”…,.

See also Western Assurance Co. v Caldwell's Trustee 1918 AD 262…,.; Mhini v Mapedzamombe 1999 [1] ZLR 561 [H]; and Nehanda Housing Co-operative Society & Ors v Simba Moyo & Ors HH987-15…,.

In Mhini v Mapedzamombe 1999 [1] ZLR 561 [H] the applicant was bombarded with incessant litigation in respect of the same issue which related to the setting aside of a certain sale in execution. The court issued an interdict barring the respondent from instituting any further proceedings in this court relating to that issue.

Describing the conduct of the respondent, GARWE J…, said…,.:

“The sale was subsequently confirmed…,. Since then, there has been a multiplicity of proceedings in which the respondent has, in the main, attempted to have the sale in execution set aside. These attempts have failed. The respondent appealed to the Supreme Court against an order of this court dismissing the claim. The appeal was dismissed with costs.

Since the dismissal of the appeal, the respondent has instituted various proceedings in which he has cited the applicant and others as the respondents. Some of the proceedings have not been pursued, and, in some instances, the same relief has been claimed in different cases.”…,.

In this matter, and the others involving Ignatius Masamba, the situation has been worse.

It is an exceptional and drastic course of action to withdraw a litigant's constitutional right of access to the courts. But, it is one the courts will not shirk from where there has been persistent abuse.

Ignatius Masamba's suits have been flagrantly abusive, in both the literal and legal sense.

Evidently, the sort of help Ignatius Masamba really needs cannot be found within the corridors of the halls of justice. He operates at a completely different plane. His actions are harmful, not only to the applicant and the several other litigants that have appeared on his opposite side, but also to the courts and their officers. He has clogged the system with a litany of irrational verbiage.

He has to be stopped.

In the premises, I issue the following order:

1. A decree of perpetual silence is hereby issued against Ignatius Masamba in respect of his agency, management, occupation, or interest of whatever kind in the property known as No. 4 Residell Court, 56 Selous Avenue, Harare, more particularly that:

1.1 Ignatius Masamba, either personally, or through, or on behalf of any other person, is hereby interdicted and restrained from instituting or prosecuting in this court, any action, application, suit or proceedings of whatever nature in connection with whatever interest he may have in the property aforesaid without the leave of this court first being applied for and obtained, and in which application he shall demonstrate sufficient mental capacity to do so;

1.2 The Registrar of this court shall not issue out any process commencing action, or set down any matter already filed or commenced by, for, on behalf of, or at the behest of, Ignatius Masamba in connection with that property, without the leave of this court first being applied for and obtained;

1.3 Any application for the leave of this court, as directed above, shall be made on notice to all interested persons.

2. The costs of this application shall be paid by Ignatius Masamba on a legal practitioner and client scale.

HH793-16 : MABWE MINERALS (PVT) LTD and TAPIWA GURUPIRA and TAG MINERALS ZIMBABWE (PVT) LTD and JOHN GROVES vs PETER VALENTINE and BASE MINERAL ZIMBABWE (PVT) LTD
Ruled By: MANGOTA J

The applicants applied for a decree of perpetual silence against the respondents.

They submitted, that, these constituted a nuisance to them. The respondents, they said, took them to the Magistrates courts, this court, and the Supreme Court with no end in sight. They stated, that, the respondents took them to court on not less than forty (40) occasions. They averred, that, they have been subjected to a series of abusive criminal and civil proceedings. They said, despite repeated dismissal of their claims by the courts, the respondents maintained the position, that, the judgments which were entered against them were ineffectual. They complained that the respondents were harassing and vexing them. They insisted that the court should protect them as well as itself from the abusive conduct of the respondents. They moved the court to grant them the decree.

The respondents opposed the application.

They moved the court to examine the cases which formed the basis of the application in relation to their cause.

They denied that they were always in the driving seat when the cases which the applicants made reference to found their way to the court(s). They stated, that, the applicants filed some of the cases with the court(s). They said all the cases upon which the current application rests had a bearing on a mine tribute agreement which the fourth applicant (John Richard Needham Groves) concluded with the second respondent (Base Mineral Zimbabwe (Pvt) Ltd). The fourth applicant, they said, concluded the tribute agreement with them through his Chiroswa Minerals (Pvt) Ltd [“the company”].

They submitted, that, they should not be silenced for their effort to assert their right in the tribute agreement. They moved the court to dismiss the application with costs.

At the centre of the parties dispute is Dodge Mine [“the mine”]. It lies in Shamva District under Mashonaland Central Province. It has six claims. These are lucrative, according to the evidence filed of record.

The fourth applicant and his partner used to own and work the mine. They worked it under the name Chiroswa Syndicate. The fourth applicant later sold the mine to the first applicant (Mabwe Minerals (Pvt) Ltd). This was after his partner had left the syndicate. The first applicant is currently the owner of the mine.

The issue of the mine has seen the parties take each other to court on thirty (30), and not forty (40) occasions.

The applicants filed actions and/or applications against the respondents on nine (9) occasions. The respondents filed actions and/or applications on sixteen (16) occasions. The following five (5) cases were not accounted for: HC233/13, HC5669/13, HC5460/13, HC6842/14 and HC308/12.

The court could not tell which party filed what action or application in respect of the mentioned five (5) cases. What it could tell, however, was that the parties have been in and out of courts on thirty (30) occasions.

The relief which the applicants moved the court to grant to them is not new to the jurisdiction of this court.

In Mhini v Mupedzamombe 1999 (1) ZLR 561…, GARWE J…, had the occasion to deal with an issue which was similar to the present one. The learned judge quoted with approval what CURLEWIS J said in Brown v Simon 1905 TS 311…, wherein he remarked that the procedure:

“…, affords a useful means of bringing to a conclusion all threatened actions, and, in our opinion, it is applicable under due safeguards not only to cases where a claim has been made or an action threatened publicly, but, to every case where by demand or threatened action there has been a disturbance of, or interference with, the quiet enjoyment of another's rights.”…,.

In Corderoy v Union Government [Minister of Finance] 1918 AD 512, which GARWE J was pleased to make reference to in Mhini v Mupedzamombe 1999 (1) ZLR 561, the South African Appellate Division held, that, when there has been repeated and persistent litigation between the same parties, in the same cause of action, and in respect of the same subject–matter, the court can make a general order prohibiting the institution of such litigation without the leave of the court, but, that power extended only to prevent abuse of its own process without being concerned with the process of other courts.

The paucity of case authorities on the current subject is ample evidence of the fact that the relief, whilst recognised at law, is seldom resorted to.

It is only granted where a party succeeds in showing the court, that, the defendant or respondent is a serial litigator who has the tendency to abuse not only the court but also its process and his adversary.

It is important for the court to examine and establish the fact of whether or not the respondents fall into the category of serial litigators who abuse the applicants, the court(s), and their processes.

The dispute of the parties has its origin in the judgment of PATEL J…,.

The learned judge had the occasion to hear and determine the matter in which Chiroswa Minerals (Pvt) Ltd [“the company”] and the second respondent (Base Mineral Zimbabwe (Pvt) Ltd) brought before him under case number HH2612/11. The company and the second respondent had sued the following three parties – the Minister of Mines, one Morris Tendayi Nyakudya and the latter's company, Vambo Mills (Pvt) Ltd. They succeeded in having Mr Nyakudya and Vambo Mills (Pvt) Ltd evicted from the mine where they were operating in terms of an expired tribute agreement. They successfully moved the court to order the Minister of Mines to refer the tribute agreement, which they had concluded between them, to the Commissioner of Mines for approval and registration.

A reading of PATEL J's judgment, under HH261-11, tends to suggest, that, it was Chiroswa Minerals (Pvt) Ltd which entered into the tribute agreement with Morris Tendayi Nyakudya and his Vambo Mills (Pvt) Ltd. It is also not a far-fetched suggestion, that, Chiroswa Mills (Pvt) Ltd moved to enter into the second tribute agreement of the mine with the second respondent.

The abovementioned observations find support from the fact, that, it is Chiroswa Minerals (Pvt) Ltd, and not Chiroswa Syndicate, which moved for the eviction of Mr. Nyakudya and his Vambo Mills (Pvt) Ltd from the mine. The company worked hand-in-glove with the second respondent to achieve its desired end-in-view.

The impression which the company created in the mind of the respondents, at the time, was that it owned the mine. It could not successfully evict those from the same if it was not the owner of the mine. It would have had no locus standi to do so.

It is common cause, that, the fourth applicant (John Richard Needham Groves) owned Chiroswa Minerals (Pvt) Ltd. He, in appreciation of his good working relationship with the first respondent (Peter Valentine), donated 50% of his shares in the company to the first respondent. The first respondent, it is not in dispute, was or is the Managing Director of the second respondent (Base Mineral Zimbabwe (Pvt) Ltd).

The above observed matters do, in the court's view, account for the misunderstanding which later ensued between the fourth applicant (John Richard Needham Groves) and the respondents (Peter Valentine and Base Mineral Zimbabwe (Pvt) Ltd).

These, the first respondent in particular, must have laboured under the genuine but mistaken belief that they, or he, as a 50% holder of shares in Chiroswa Minerals (Pvt) Ltd, had a substantial interest not only in the company but also in the mine which the company owned.

The first respondent's belief in the mentioned regard finds support from a reading of MATANDA-MOYO J's judgment under case number HH557-14.

The first respondent (Peter Valentine) had, in the case, sued the first, second and fourth applicants (Mabwe Minerals (Pvt) Ltd, Tapiwa Gurupira and John Richard Needham Groves). He moved the court to set aside the agreement of sale of the mine which the fourth applicant had concluded with the first and the second applicants. He claimed that he owned 50% of the mine. He challenged his omission from participating in the sale of the mine. He insisted that the sale was, on the mentioned basis, null and void and had, therefore, to be set aside.

It is such belief, as has been stated in the foregoing paragraphs, which caused the respondents to file one suit after another with the courts.

They worked on the impression which had been created. They believed that they, or one of them, owned 50% of the shares in the company which owned the mine. They, therefore, made every effort to assert what they believed belonged to them.

The respondents belief was shattered when MATANDA-MOYO J ruled, to their disappointment, that, Chiroswa Syndicate, and not Chiroswa Minerals (Pvt) Ltd, owned the mine.

The respondents could not, under the stated circumstances, be said to have engaged themselves in a wild goose chase, as it were. They honestly believed, in the court's view, that, they were pursuing a genuine cause. They believed, further, that, the fourth applicant (John Richard Needham Groves) and the company were treating them unfairly. They, therefore, made effort to have their case determined by the courts.

The respondents unrelenting effort to assert their right, in what they believed belonged to them, took their case to a higher level in 2013.

In a matter which Chiroswa Minerals (Pvt) Ltd and the second respondent filed under case number HC5208/13, TAKUVA J remained alive to the judgment which PATEL J delivered under HH261-11.

The learned judge ordered the Minister of Mines, one Obert Mpofu, and the Commissioner of Mines, a Mrs E Kahonde, to process the tribute agreement which Chiroswa Minerals (Pvt) Ltd and the second respondent (Base Mineral Zimbabwe (Pvt) Ltd) concluded as at the time of PATEL J's judgment and to have the same registered at the offices of the Mining Commissioner.

The order contained a stiff sanction which the Minister and the Commissioner would suffer if they did not comply with it. They would each be held to have been in contempt of court and be committed to thirty (30) days imprisonment.

It was as a result of TAKUVA J's order that the Mining Commissioner did, on 13 February 2014, register a tribute agreement in favour of the second respondent (Base Mineral Zimbabwe (Pvt) Ltd).

The fourth applicant represented the company and Chiroswa Syndicate in the tribute agreement which the parties registered with the Mining Commissioner. The first respondent represented the second in the same. The tribute was or is to endure for a period of three years. It would, therefore, expire on 13 February 2017.

Given the above described set of circumstances, it would be difficult, if not impossible, for one to suggest, as the applicants did, that the respondents were or are a nuisance to them.

The applicants, the fourth applicant in particular (John Richard Needham Groves), conveyed an impression to the respondents. These believed him, only to discover, at a later stage, that, he was hunting with the hounds and running with the hares, so to speak.

He dined and wined with them, as it were. He later switched his allegiance from them and proceeded to work with the applicants against them.

The fourth applicant was undoubtedly the main cause of the parties misunderstanding.

He, through his Chiroswa Minerals (Pvt) Ltd, worked with the second respondent (Base Mineral Zimbabwe (Pvt) Ltd) to evict persons who were at the mine from the same. He agreed to enter into a tribute agreement of the mine with the second respondent. He sold the mine to the first applicant (Mabwe Minerals (Pvt) Ltd). He sold his 50% shareholding in Chiroswa Minerals (Pvt) Ltd to the third applicant (Tag Minerals Zimbabwe (Pvt) Ltd).

He consulted no one in this complicated matrix which he created, not for himself, but for the respondents.

The court was not amused by the fourth applicant's manner of dealing with his business partners.

It viewed the applicants effort to conceal certain matters from it with serious disquiet.

They attached to the application a wrong tribute agreement. The agreement showed its life span as commencing on 14 December 2011 and expiring on 14 December 2014. They did not make any reference to the correct tribute agreement which was registered at the Mining Commissioner's offices on 13 February 2014. They plucked off the last page of PATEL J's judgment i.e. the page on which the learned judge's order was recorded. They made an effort not to disclose the existence of TAKUVA J's order under HC5208/13.

In acting as they did, the applicants aim and object were to paint the picture which showed, that, the respondents were a rogue element which must be placed under leash all the time, so to speak.

They, unfortunately for themselves, over-did their trick to a point where their story remained difficult, if not impossible, to believe.

They were ably legally represented in this and other actions or applications. Their legal practitioner should have been more candid with the court than he did. The court, therefore, viewed the conduct of the applicants and their legal practitioner with displeasure.

The respondents could not be faulted for having made an effort to assert their right in what they believed belonged to them. They cannot be blamed for asserting their right in the tribute agreement which was registered in the second respondent's favour on 13 February 2014.

That agreement is still extant. It will only expire on 13 February 2017.

The application cannot, on the basis of the foregoing, be allowed to stand.

A decree of perpetual silence, as I understand it from the papers which were placed before me, is a very extraordinary remedy. It seeks to make a person not deaf but dumb before the court which perpetually silenced him. Its aim and object are to bar him from instituting any criminal or civil proceedings against the party in whose favour the bar operates. It bars him from litigating or prosecuting except with the leave of a judge or the court, and for good cause shown, as well as on notice to his adversary. It sees him as a serial litigator who abuses the court, its process, and his adversary with no end which is of any benefit to him being ever in sight.

Its extraordinary character lies in that, once it is granted, it deprives a person of his constitutional right to litigate or to prosecute.

It can, for the mentioned reasons, be granted only in exceptional circumstances.

The respondents in casu were not shown to be a set of serial litigators. They were not shown to have been suing or prosecuting the applicants with no end in sight which was not of benefit to them. They had, and still have, a clearly defined cause which they were, and are, enforcing. They took the long road to realise their intended benefit because of unsound advice which their erstwhile legal practitioner continued to dish out to them. He made them use the wrong method to achieve their lawfully acquired right.

They should not, therefore, be made to suffer for the sins of their legal practitioner.

Indeed, the courts expressed their displeasure against the legal practitioner when they ordered him to pay costs on two separate occasions. Such was the height of the courts lack of amusement on the work of the respondents legal practitioner.

If he had sat down to reflect, as he should have, he would have realized that something was not sticking in the manner that he approached the case of his clients.

The court has considered all the circumstances of this case. It is satisfied that the applicants were not able to discharge the onus which rested upon them. Their application stood on nothing. They made their case less credible by concealing vital evidence which related to the application.

The application is, accordingly, dismissed with costs on a higher scale.

SC47-22 : ISMAIL LUNAT vs MOHAMMED PATEL
Ruled By: CHATUKUTA JA

In The Ampthill Peerage [1977] AC 547…, LORD WILBERFORCE remarked as follows:“Any determination of dispute of fact may, the law recognises, be imperfect; the law aims at providing the best and safest conclusion compatible with human fallibility, and, having reached that solution, it closes the book. The law knows, and ...

SC40-17 : FADZAI JOHN vs DELTA BEVERAGES LIMITED
Ruled By: GUVAVA JA

This is a chamber application for leave to appeal against the decision of the Labour Court in terms of section 92F of the Labour Act [Chapter 28:01].

After hearing arguments from both parties on the preliminary points raised, I dismissed the application with costs. The applicant has requested written reasons for the decision. These are they.

The brief facts of the matter may be summarized as follows:

The applicant was employed by the respondent as a Sales Representative. The respondent alleged, that, on 20 September 2010, the applicant requested and was given 40 cases of soft drink cans in order to replace a bad batch which had been delivered to Food World, a shop based along Cameron Street.

The respondent further alleged, that, the 40 cases were never delivered to Food World.

Based on these allegations, the applicant was charged with theft under section 1(1) of the respondent's Code of Conduct.

Following a disciplinary hearing, the applicant was found guilty of theft and dismissed from employment.

The main evidence against the applicant was a document which was allegedly signed by an employee from Food World acknowledging receipt of 21 cases instead of 40.

During the disciplinary hearing, the Food World employee who had signed for the 21 cases was made to sign, five times, to check his signature against that on the delivery note in question. The members of the Disciplinary Committee came to the conclusion that the signatures did not match, and, consequently, that the drinks were never delivered.

Based on that conclusion, the applicant was found guilty of theft.

The applicant was aggrieved by the decision and appealed to the Labour Court. On appeal to the Labour Court, the disputed signatures were sent to a handwriting expert.

The expert confirmed the finding before the Disciplinary Committee, that the signatures which had been taken during the hearing did not match the signature of the witness.

The appeal was thus dismissed.

The applicant applied for leave to appeal to the Supreme Court, which leave was denied. The applicant then filed the present application.

The respondent opposed the application, and, in its Notice of Opposition, raised six preliminary points. It was argued on behalf of the respondent:

(i) Firstly, that the application was fatally defective as it did not contain a record of the proceedings before the Labour Court.

(ii) Secondly, the application did not contain a prayer for the relief sought by the applicant.

(iii) Thirdly, the application did not conform with the form for such applications, as there was no document setting out the grounds supporting the granting of leave.

(iv) Fourthly, the application did not contain grounds that can support the relief sought.

(v) Fifthly, the application did not state the date when the Labour Court refused to grant the applicant leave to appeal as required by the Rules.

(vi) Sixthly, the affidavit filed in support of the application was defective; and, lastly

(vii) The applicant had cited a non-existent respondent.

At the hearing, the respondent submitted that the application should be dismissed due to the following points:

1. Defective Relief Sought

The applicant's prayer in the draft Notice of Appeal was defective as it was incomplete. The relief sought was drafted as follows:

“Wherefore, the appellant prays that the appeal be allowed with costs and the decision of the court a quo to be set aside and it be substituted as follows:

'1. The appellant be and is hereby reinstated with full benefits and back pay with effect from the date of unlawful dismissal.

2. In the event that the reinstatement is no longer possible, either party is entitled to approach the court for quantification of damages and back pays.'”

It has been emphasized in several judgments of this court, that, the Rules require that that prayer in the Notice of Appeal must exact in nature.

This matter came to the Labour Court as an appeal from a determination of the Disciplinary Committee. This application is to appeal against the decision of the Labour Court. In seeking the setting aside of the decision of the court a quo, the applicant neglected to address what should happen to the decision of the disciplinary hearing.

In casu, for the avoidance of doubt, the prayer ought to have read as follows:

“Appellant prays that the appeal be allowed with costs and the decision of the court a quo to be set aside and substituted as follows:

'1. Appeal be and is hereby allowed…,.

2. The decision of the Workers Council is set aside.

3. The appellant be and is hereby reinstated…,.”

In the case of Ndlovu & Anor v Ndlovu & Anor SC133-02, MALABA JA…, held that:

“The exact nature of the relief sought was not stated. What was prayed for in the Notice of Appeal was that the judgment of the court a quo be dismissed with costs. It is the appeal which is dismissed or allowed. If the appeal is allowed, the judgment or decision appealed against is then set aside and a new order substituted in its place. In this case, it was not known what order the appellants wanted this Court to make in the event the appeal succeeded.”…,.

In this case, the applicant not only failed to pray for the success of the instant appeal but also failed to highlight what order he seeks to substitute in the event that the appeal is allowed.

In the case of Chamboko v Dorowa Minerals Limited SC26-15, this court stated as follows:

“In any case, an applicant for leave to appeal must file a Notice of Appeal that conforms to the requirements of the rules of court at the time the application for leave to appeal is made. Where the Notice of Appeal filed is fatally defective, there is no valid application.”

2. Failure to cite the correct respondent

The respondent highlighted that it has been cited as 'Delta Beverages Limited' as opposed to 'Delta Beverages (Private) Limited.'

The applicant concedes this point in his answering papers.

In Gariya Safaris (Pvt) Ltd v Van Wyk 1996 (2) ZLR 246 (H) it was stated as follows:

“A summons has legal force and effect when it is issued by the plaintiff against an existing legal or natural person. If there is no legal or natural person answering to the names written in the summons as being those of the defendant, the summons is null and void ab initio.”

In this case, the applicant cited a non-existent respondent. Thus, in the same vein, the application was a nullity.

3. Failure to attach the record of the court a quo

Counsel for the respondent contended, that, the failure by the applicant to attach the record of the court a quo to the present application was fatal.

Although this is not a requirement in terms of the Supreme Court (Miscellaneous Appeals and References) Rules, 1975 as the matter is an appeal from the Labour Court; in this case, the court, in dealing with the matter in a previous application, had directed that the record of proceedings should form part of the record.

In spite of such direction, the applicant failed to do so.

This was fatal to the application: see Masenga v Guthrie 2002 (2) ZLR 321…,.

Although it is generally accepted that dismissing matters on technicalities is not desirable, the defects in the present application were of such a nature that they went to the root of the application.

Where the court is presented with a defective application, the applicant must seek the indulgence of the court in order for the irregularities to be condoned.

It has been stated in numerous decisions of this court, that, legal practitioners are officers of the court charged with exercising due care in the execution of their roles.

The court is inundated with pleas of mercy where legal practitioners have not carried out their work with due diligence.

There comes a time when the court, in the exercise of its discretion, must decide that that there is a limit to which such indulgences can be granted to an applicant, and such applications will be dismissed where they fail to comply with the rules of the court.

Striking the matter off from the roll does not finalize the matter, but merely means the matter will be filed again; thus, clogging the court system with recycled cases.

In my view, there is a limit to which the court will indulge a litigant, as there must be finality in litigation.

This is so especially in circumstances where a matter has been brought before the court previously and an indulgence granted by the court and an interim order given, as in this case, directing that certain things be done – yet, the matter is filed again without complying with the courts direction.

In this particular case, the parties had specifically agreed that this application would be placed before me to ensure that what had been agreed to would be done.

Despite that undertaking, the application was filed without doing what had been agreed to and directed by the court.

In most cases, the courts refrain from visiting the errors of a practitioner on the client; however, as McNALLY JA stated in the case of Ndebele v Ncube 1992 (1) ZLR 288 (S)…,:

“It is a policy of the law that there should be finality to litigation. On the other hand, one does not want to do injustice to litigation, but, it must be observed that in recent years applications for condonation, for leave to apply or appeal out of time, and for other relief arising out of delays either by the individual or his lawyer have rocketed in numbers. We are bombarded with excuses for failure to act. We are beginning to hear more appeals for mercy than justice.

Incompetence has become a growth industry….,.

The time has come to remind the legal profession of the old adage: vigilantibus non dormientibus jura subveniunt, roughly translated; the law will help the vigilant but not the sluggard.”…,.

Vigilance applies not only with respect to time taken to file process, but, incorporates careful observation, due care, prudence, attention to detail, and a conscientiousness that exemplifies diligence on practitioners part in drafting documents for a litigant and obeying court orders.

All these factors were lacking in this application.

It was for the above reasons that I upheld the points in limine and dismissed the application with costs.

SC41-21 : YSMIN MAHOMMED vs TAWURAYI KASHIRI
Ruled By: KUDYA AJA

This is a chamber application for condonation of the late filing of an appeal and extension of time within which to appeal launched in terms of Rule 43(1) of the Supreme Court Rules 2018.The application is opposed.BACKGROUND FACTSThe applicant and the respondent are joint owners of an immovable property, Stand ...

BACKGROUND FACTS

The applicant and the respondent are joint owners of an immovable property, Stand 24 Philadelphia Township of Philadelphia, Harare held under Deed of Transfer 4986/02.

On 16 February 2017, they executed a Deed of Settlement on the disposal of the immovable property in question, whose terms were incorporated in consent orders granted by the High Court in other cases that were pending between them.

The parties agreed to engage two estate agents, Guest and Tanner and Dawn Properties, to value the immovable property. The mean of the two valuations was to be the value of the property. If, however, any party was dissatisfied with any of the two valuations, the parties legal practitioners would jointly choose a third estate agent, whose valuation would be final.

Thereafter, the applicant had the right to buy out the respondent's one-half share in the property within six (6) months of receipt of the acceptable valuation, failing which the respondent had the same right to buy out the applicant's one half share within a further period of six (6) months.

In the event that the parties failed to exercise their respective rights, the property was to be sold by private treaty, with the parties sharing the net proceeds equally.

The parties jointly instructed the two estate agents to value the property. Dawn Properties valued it at US$250,000 while Guest and Tanner valued it at US$292,000.

The two valuators submitted their respective reports on 28 March 2017 and 30 March 2017 to the parties respective legal practitioners.

The applicant's legal practitioners failed to appreciate the valuation methodology applied by Guest and Tanner. Consequently, on 26 May 2017, they sought the estate agent's comments on these aspects without copying their correspondence to the respondent's legal practitioners.

In response, the estate agent cryptically asserted that the valuation amount constituted a typographical error and proceeded to rectify the earlier amount by substituting it with the lower figure of US$192,000.

The respondent's legal practitioners were oblivious of the communication between the applicant's legal practitioners and Guest and Tanner. They simply filed away the original valuation report without much thought.

The respondent's legal practitioners forwarded the corrected Guest and Tanner valuation report to the applicant's legal practitioners. Apparently, the respondent's legal practitioners, again, simply filed away the rectified report.

Thereafter, the respondent's legal practitioners computed the value of the property at US$221,000 being the mean of the lower Guest and Tanner figure and the Dawn Properties figure.

The respondent exercised his right of first refusal, and, on the directions of the applicant's legal practitioners, deposited, within the prescribed payment period, on 5 January 2018, the one-half share due to the applicant in the sum of US$110,500 into her nominated bank account and transmitted proof of payment.

Thereafter, he sought transfer of the property into his name, but, the applicant refused to co-operate.

He applied to the High Court for an order compelling the applicant to make transfer. She contested it on the basis, that, the respondent's legal practitioners were guilty of material fraudulent non-disclosure of failing to copy the inquiry letter to Guest and Tanner to her legal practitioners, which induced her to accept payment of US$110,500.

She averred that the material non-disclosure influenced Guest and Tanner to reduce the value of the property to her prejudice.

The court a quo accepted that the respondent's legal practitioners had acted unethically, but, dismissed the objection and granted the application for the transfer of the applicant's one-half share in the property to the respondent.

The applicant appealed to this Court on two grounds of appeal in case number SC909/2018. The appeal was heard on both the preliminary point raised by the respondent and on the merits, on 30 June 2019.

The preliminary point raised was that the two grounds of appeal were prolix and argumentative.

Judgment was reserved and handed down on 24 October 2019, as Judgment No. SC85-19. The appeal was determined on the preliminary point.

The two grounds of appeal were found to be “prolix and argumentative.” The appeal was accordingly struck off the roll on the basis that the Notice of Appeal was fatally defective.

On 13 November 2019, the applicant's legal practitioners of record wrote to the Registrar of this Court seeking the correction of the judgment in terms of Rule 73 of the Supreme Court Rules as read with Rule 449(1)(b) of the High Court Rules.

Out of an abundance of caution, the applicant filed the present application on 21 November 2019.

It was opposed on 28 November 2019.

The answering affidavit was irregularly filed on 6 December 2019, outside the period prescribed in Rule 43(5) of the Supreme Court Rules 2018.

The matter was set down in chambers on 20 December 2019 and removed from the roll for the reason, that, the letter of 13 November 2013, seeking correction of the judgment of this Court, constituted lis pendens.

The applicant managed to save her application by withdrawing the letter of 13 November 2019, on 27 January 2020.

Consequently, the respondent filed his heads of argument on 30 January 2020, while the applicant did so on 4 February 2020.

The application is silent on the events between that date and 2 October 2020, when the matter was placed before me - without the heads of argument.

I set it down for hearing on 9 October 2020, on which date the parties handed copies of their heads of argument from the bar....,.

I heard argument on both the preliminary points and on the merits.

I indicated to the parties that I would not proceed to determine the matter on the merits if I upheld any of the preliminary points raised, and reserved judgment....,.

THE MERITS

The broad factors to be taken into account in an application of this nature have been stated in a number of cases and are now well established. They are:

(i) The extent of the delay;

(ii) The reasonableness of the explanation for the delay; and

(iii) Prospects of success.

See De Kuszaba-Dabrowski et Uxor v Steel NO 1966 RLR 60 (A)…,.; 1966 (2) SA 277 (RA); HB Farming Estate (Pty) Ltd & Anor v Legal and General Assurance Society Ltd 1981 (3) SA 129 (T)…,.; Kombayi v Berkhout 1988 (1) ZLR 53 (S)…,.

Other additional, but not exhaustive, factors are:

(i) The importance of the case;

(ii) The respondent's interest in the finality of the case;

(iii) The convenience of the court; and

(iv) The avoidance of unnecessary delays in the administration of justice.

See K.M. Auctions (Pvt) Ltd v Adenash Samuel & Anor SC15-12…,.; Mutizhe v Ganda & Ors SC17-09…,.; and Maheya v Independent African Church SC58-07…,.

THE EXTENT OF THE DELAY

In Bishop Elson Madoda Jakazi & Anor v The Anglican Church of the Province of Central Africa & Ors SC10-13…, ZIYAMBI JA held, that, the delay in filing an application for condonation for non-compliance with the Rules was inordinate.

In that case, the impugned judgment was delivered on 19 May 2010. Two days later, the fatally defective Notice of Appeal was filed. The appeal was heard on 22 October 2012 and struck off the roll on the ground that the Notice of Appeal was fatally defective. The appellant, thereafter, filed an application for condonation on 1 November 2012.

The delay for filing condonation was reckoned from the date of the High Court judgment and adjudged inordinate.

In the present matter, the judgment appealed against was delivered on 14 November 2018. The initial Notice of Appeal, which was found to be fatally defective on appeal, was filed timeously on 28 November 2018. The appeal was heard on 30 June 2019 and struck off the roll on 24 October 2019 by reason of the defective Notice.

The present application was filed on 21 November 2019 and prosecuted in October 2020.

On the authority of the analogous Bishop Elson Madoda Jakazi & Anor v The Anglican Church of the Province of Central Africa & Ors SC10-13, I find that the delay in filing the present application was inordinate.

THE REASONABLENESS OF THE EXPLANATION FOR THE DELAY

The applicant is required to state, in her founding affidavit, the reasons for the delay. This is because her application stands or falls on the averments deposed to in the founding affidavit: see Fuyana v Moyo SC54-06…,.

The applicant should not expect the court to ferret in cross-reference files or to surmise from the circumstances of the case what the reasons for the delay are. This is for the simple reason, that, it is not the duty of the court to make up a case for a litigant but for litigant to make out her case and persuade the court on the propriety of granting the indulgence sought.

This position is affirmed by UCHENA JA in Nzara & Ors v Kashumba & Ors SC18-18…, in these words:

“A court is not entitled to determine a dispute placed before it wholly based on its own discretion, which is not supported by the issues and facts of the case. It is required to apply the law to the facts and issues placed before it by the parties.”…,.

See also Kauesa v Minister of Home Affairs and Others 1996 (4) 965 (NmS)…,.

In the present application, despite the intimate and active involvement of Mr Paul in this case and the existence of all the relevant information in the cross reference files pertaining to this matter, Mr Paul, as the deponent to the founding affidavit, did not proffer any explanation for the delay in noting the appeal, seeking condonation, and prosecuting this application: see Saloojee and Anor, NNO v Minister of Community Development 1965 (2) SA 135 (A)…,.

He conceded as much at the hearing.

He, however, argued that as the applicant had reasonable prospects of success on appeal, the failure to provide the reasons for the delay in the application was not fatal.

He was wrong.

The contention is contrary to what this court said in the Director of Civil Aviation v Hall 1990 (2) ZLR 354 (S)…, where GUBBAY CJ cited with approval MULLER JA in Bosman Transport Works Committee & Ors v Piet Bosman Transport (Pty) Ltd 1980 (4) SA 794 (A)…, that:

“Where there has been a flagrant breach of the Rules of this Court in more than one respect, and, where in addition, there is no reasonable explanation for some periods of delay, and, indeed, in respect of other periods of delay, no explanation at all, the application should…, not be granted - whatever the prospects of success may be.”

See also Makonye v Barclays Bank Ltd SC10-07 and Marange v Chiroodza SC29-12 where failure to give an explanation, let alone a reasonable one, was fatal to analogous applications.

In Zimslate Quartzize (Pvt) Ltd & Ors v CABS SC34-17…, it was held that:

“An applicant, who has infringed the rules of the court before which he appears, must apply for condonation, and, in that application, explain the reasons for the infraction. He must take the court into his confidence and give an honest account of his default in order to enable the court to arrive at a decision as to whether to grant the indulgence sought.

An applicant who takes the attitude that indulgences, including that of condonation, are there for the asking does himself a disservice as he takes the risk of having his application dismissed.”

I was inclined to dismiss the application for this fatal flaw, but, for the case of Katsande v Katsande SC49-19 wherein this Court still considered the prospects of success, in the absence of an explanation for the delay in filing a similar application, and actually granted the application.

This court appears to have adopted a liberal approach to still consider the prospects of success in cases where the delay has been inordinate and the explanation thereof either lacking or unreasonable as underscored in Viking Woodwork (Pvt) Ltd v Blue Bells Enterprises (Pvt) Ltd 1998 (2) ZLR 249 (S)…, which stated that:

“Where the explanation for the delay is far from satisfactory, the court will still exercise its discretion in favour of granting the indulgence of condonation, provided the proposed appeal is arguable. The role of the judge in an application of this nature is to stand sentinel at the gates of the court, guarding against those desirous of making a grand entrance into the court with un-arguable appeals. In respect of those, the gate must be firmly shut.”

The approach to follow was also delineated in Mutizhe v Ganda & Ors SC17-09…, where it was stated that:

“One looks at the founding affidavit for evidence of the facts stated as grounds of appeal. Considering these facts, together with the reasons for the judgment appealed against, and applying the relevant law, one can decide whether there are good prospects of success on appeal.”

The facts upon which the applicant seeks to impugn the judgment of the court a quo were that the mean valuation of the immovable property upon which the applicant was bought out by the respondent was partly based on an inexplicable US$100,000 reduction of the initial valuation report prepared by one of the parties valuators of choice, Guest and Tanner.

The first report, of 30 March 2017, placed an open market value of the property at US$292,000.

That report was received by the respective legal practitioners of the parties.

The property consisted of the land, various outbuildings in a state of disrepair, and a one-storey incomplete brick and mortar and concrete un-roofed superstructure.

The applicant's legal practitioners filed the report away without much ado.

The respondent's legal practitioners scrutinized it, and, by letter of 26 May 2017, sought certain clarifications on the methodologies used to value the property.

Even though they insinuated that the enquiry was from both parties, they did not copy the letter of enquiry to the applicant's legal practitioners.

In the response of 23 June 2017, Guest and Tanner sincerely apologized “for the typographical error in the valuation certificate that erroneously reflected the open market value as US$292,000 instead of US$192,000.”

They enclosed the second valuation report with the corrected values and highlighted that they had used the composite method of valuation.

Guest and Tanner further affirmed, that, the sum of US$192,000 would continue to reflect the reasonable realisable open market value of the property in the upcoming six (6) month periods contemplated in the consent orders of the High Court.

On 26 July 2017, the respondent's legal practitioners dispatched the corrected valuation report, without the related correspondence, and the valuation from Dawn Properties, to the applicant's legal practitioners.

The applicant, thereafter, consented to the mean value of the property.

She purported to have acted in blissful ignorance of the existence of the first Guest and Tanner report, which carried the higher value.

She provided her legal practitioners with her bank account on or about 19 September 2017. The respondent deposited her half-share therein, within the prescribed six (6) months, on 5 January 2018.

She did not voluntarily transfer her half-share to the respondent.

The respondent sued her for transfer on 5 March 2018, and obtained judgment on 14 November 2018.

It was in those proceedings that she disclosed the basis for her attempted repudiation of the agreement to transfer her half-share on payment of the agreed purchase price.

She suspected that the respondent had, in the undisclosed letter of 26 May 2017, influenced Guest and Tanner to reduce the value of the property.

The letter in question formed part of the attachments to the pleadings filed a quo.

The court a quo made certain findings of fact. These were that:

(i) The contents of the letter could not have influenced Guest and Tanner to rectify the value of the property, as the seven questions sought explanations of how the valuation was done and was therefore not prejudicial to the applicant.

(ii) The avowed typing error was genuine.

(iii) She had not established that the corrected value was incorrect.

(iv) The applicant's legal practitioner had received the initial and subsequent valuation reports from Guest and Tanner, which had noticeable differences in the market value of the property.

(v) When the applicant became aware of the higher value, through her legal practitioner, on 22 July 2017, she could have sought a third valuation and dispensed with the mean average value, but failed to do so.

(vi) She accepted a one off payment, and not part payments, with knowledge of the two Guest and Tanner valuations.

(vii) She was estopped from rejecting transfer after misleading the respondent that her acceptance was with full knowledge of the facts pertaining to the two Guest and Tanner valuations.

(viii) The consent court order, upon which their respective actions were based, had to be obeyed or enforced.

At the hearing, counsel for the applicant conceded, that, in the circumstances of this case, the failure by the respondent's legal practitioners to copy the letter of 26 May 2017 to the applicant's legal practitioners could not constitute fraudulent non-disclosure but argued that it constituted material non-disclosure.

Counsel for the respondent strongly argued, that, it did not constitute either fraudulent or material non-disclosure as the contents of that letter did not question the initial value provided by Guest and Tanner but sought to understand the manner in which the valuation had been done.

One of the pertinent questions pertained to whether the comparative method of valuation related to analogous incomplete superstructures in comparable localities or completed houses.

This, and the other questions, were relevant in view of the caveat in both reports that there were insufficient comparable sales of analogous properties.

The valuator apparently applied the residual method estimate formula to cross-check the value of the property against those of similar but completed houses.

The court a quo reasoned, that, as the seven questions were innocuous, banal, and general, they could not conceivably have influenced Guest and Tanner to rectify the value of the immovable property.

In my view, that finding is un-impeachable.

In Attorney-General v Paweni Trade Corp (Pvt) Ltd & Ors 1990 (1) ZLR 24 (S)…, KORSAH JA defined fraud as follows:

“Generally speaking, fraud consists in knowingly making a false representation of fact with the intention to defraud the party to whom it is made, and such false representation actually causes prejudice or is potentially prejudicial to another.”

See also Wamambo v General Accident Insurance Co. of Zimbabwe Ltd 1997 (1) ZLR 299 (H)…, and S v Dzawo 1999 (2) ZLR 303 (H)…,.

The letter was clearly not calculated to induce Guest and Tanner to lower the value of the property.

She also patently failed to establish that the conduct of the respondent's legal practitioner materially induced her to accept the purchase price offered by the respondent.

In any event, the applicant's legal practitioner was served with both valuations from the same valuer - with different dates and values.

The duty of a legal practitioner to his client was articulated in M M Pretorious (Pvt) Ltd & Anor v Mutyambizi SC39-12…, in these words:

“A legal practitioner is not engaged by his client to make omissions and to commit 'oversights'. He is paid for his professional advice and for the use of his skills in the representation of his client. He is not paid to make mistakes. These could be costly to his client. He is professionally, ethically, and morally bound to exercise the utmost diligence in handling the affairs of his client.”

The supporting affidavit of the applicant's legal practitioner at the time demonstrated that he acutely failed to handle his client's mandate with probity.

A diligent legal practitioner would keep the documents pertaining to the applicant in one file from which he would constantly refer before acting on information received from other legal practitioners. He would also be expected to constantly appraise his client on the progress of her case.

It is inconceivable that the applicant's legal practitioner would have failed to observe the initial valuation report and compared it with the rectified version.

His main business at hand, on receipt of the letter and attachments from the respondent's legal practitioner suggesting the amount of the applicant's half-share, was to satisfy himself that the suggested amount was backed by the valuation reports and thereafter advise his client accordingly.

In any event, as was pronounced by this Court in Apostolic Faith Mission in Zimbabwe & Ors v Titus Innocent Murefu SC28-03, which cited with approval the sentiments of STEYN CJ in Saloojee & Anor NNO v Minister of Community Development 1965 (2) 135 (A)…, there is a limit beyond which the client cannot escape the consequences of the conduct of his legal practitioner, and, where the limit has been exceeded, the sins of the legal practitioner will visit his client.

It was also common ground, that, the legal practitioner in question was not only the legal practitioner of the applicant but also her agent.

It is trite, that, the actions of an agent, in the exercise of his mandate, are attributed to and bind his principal.

In the present matter, the receipt of the two valuation reports by her legal practitioner cum agent, and his sworn shortcomings, are ascribed to and do bind her: see Rhodes Motors (Pvt) Ltd v Pringle-Wood, NO 1965 (4) SA 40 (SRA)…, and the cases cited therein.

It was on this twin basis that the court a quo correctly held, at p6 of the cyclostyled judgment, that:

“It is not enough for Chijara, or indeed the respondent (applicant in the present application), to say that after receiving the 2 reports they did not scrutinize them in order to see that they were different. That is their fault; and, in the process, the applicant (respondent in the present case), prejudicially acted on the strength of their actions.”

In the light of the limitations to the power of an Appeal Court on the discretion exercised by a court of first instance on findings of fact, espoused in such cases as of Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (S)…, it is unlikely that the factual findings of the court a quo would be successfully impugned on appeal.

I also do not find, that, the applicant would successfully impeach the add weight sentiments of the court a quo on estoppel and the inviolability of the principle of obedience of court orders, such as the consent orders of February 2017, upon which the payment of the applicant's half-share was based.

I am satisfied, that, the applicant does not have an arguable case based on either fraudulent misrepresentation or material non-disclosure upon which an Appeal Court could find that she was induced by the conduct of the respondent, or his legal practitioner, to accept the mean value of the property in question.

There are, therefore, no reasonable prospects of success on appeal.

In the end, there must be finality to litigation and the concomitant protection of the interests of the respondent who has been unable to execute his judgment.

Some 30 years ago, in Ndebele v Ncube 1992 (1) ZLR 288 (S)…, McNALLY JA remarked that:

“It is the policy of the law that there should be finality in litigation. On the other hand, one does not want to do injustice to litigants. But, it must be observed that in recent years applications for rescission, for condonation, for leave to apply or appeal out of time, and for other relief arising out of delays either by the individual or his lawyer, have rocketed in numbers. We are bombarded with excuses for failure to act. We are beginning to hear more appeals for charity than for justice.

Incompetence is becoming a growth industry. Petty disputes are argued and then re-argued until the costs far exceed the capital amount in dispute.

The time has come to remind the legal profession of the old adage, vigilantibus non dormientibus jura subveniunt: roughly translated, the law will help the vigilant but not the sluggard.”

These perceptive words ring true to the present matter.

I am satisfied that there are no reasonable prospects of success in the appeal envisioned by the applicant. I agree with counsel for the respondent, that, the applicant's persistence in flogging a dead horse is not only an abuse of the court system but unnecessarily put the respondent out of pocket in opposing the futile and ill-fated application.

This is a proper case for mulcting the applicant with punitive costs.

Accordingly, the application is dismissed with costs on the scale of legal practitioner and client.

CC07-23 : RITA MBATHA vs VINCENT NCUBE and MESSENGER OF COURT
Ruled By: PATEL JCC

This is a chamber application for condonation and extension of time within which to file an application for direct access due to non–compliance with Rule 9(7) of the Rules of this Court. The instant application was made in terms of Rule 35 of the Constitutional Court Rules 2016.The BackgroundThe applicant ...

The Background

The applicant in this matter is a self-actress seeking the indulgence of this Court to be granted condonation for non-compliance with the Rules.

On 29 March 2023, her application for direct access to this Court, under Case No. CCZ55/22, was struck off the roll due to her failure to effect proper service on the first respondent. The application was one of many suits between the applicant and the first respondent who have been deadlocked in protracted litigation since 2016 when the latter sought to evict the former from his property.

The dispute between the parties appeared to have reached finality when the Supreme Court, in Case No. SC443/21, dismissed the applicant's appeal in which she had challenged the court a quo's dismissal of her urgent chamber application for an interdict meant to bar the first respondent from effecting eviction in terms of the ejectment order granted in his favour under Case No. MC39520/16.

However, the applicant was dissatisfied with the verdict rendered by the Supreme Court, taking particular issue with the utilisation of Rule 53(3) of the Supreme Court Rules 2018.

It was on the basis of the aforementioned Rule that the matter was determined on the merits, having regard to the papers filed of record following the applicant's default of appearance before the Supreme Court.

The dismissal of the appeal culminated in the applicant filing an application for rescission which was subsequently dismissed by the Supreme Court.

Aggrieved by this turn of events, the applicant sought to challenge the final verdict of the Supreme Court before this forum arguing that her fundamental right to a fair trial had been unduly violated.

However, it was due to the earlier-mentioned defective manner of service that the applicant found herself seeking this Court's indulgence to file a proper application for direct access.

In her founding affidavit, the applicant proceeded to narrate the background of her prospective application before this Court. She made unsubstantiated allegations of professional impropriety against the Registrar of this Court which suggested that there was collusion with the first respondent.

There was no explanation tendered for her non–compliance with the Rules of this Court save to insist upon vindicating her allegedly impugned constitutional rights.

According to the applicant, the main application enjoys prospects of success as she was discriminated against by the Supreme Court in Case No. SC443/21.

She also made the bald averment that the first respondent also wanted the matter to be determined to finality by this Court.

The applicant advanced the argument, that, it was important for this Court to make a ruling on whether the Supreme Court's decision to proceed with the matter under Case No. SC443/21 in her absence was fair and just.

It was the applicant's case, that, the Supreme Court furthered her injustice by dismissing her application for rescission in Case No. SC237/22, especially since the matter was determined by the same Bench which had presided over her appeal in Case No. SC443/21.

The grant of condonation was opposed by the first respondent.

It was submitted, that, the applicant's conduct was driven by a desire to remain on his property despite a valid ejectment order from the Magistrates Court under Case No. MC39520/16.

The first respondent alleged, that, the applicant was creating a trail of purportedly pending litigation to frustrate her eviction. He reasoned that the Supreme Court was well within its power to utilise Rule 53(3) of the Supreme Court Rules in the appeal proceedings under Case No. SC443/21. Thus, it was argued that the present proceedings were now a mere abuse of court process.

In response, the applicant submitted that the first respondent was intent on preventing the finalisation of the dispute. She proceeded to justify her interests in several matters pending before this Court and other judicial fora.

The rest of her answering affidavit was dedicated to objectionable material save for the insistence that her fundamental right to a fair trial had been violated by the conduct of the Supreme Court in the proceedings under Case No. SC443/21.

Submissions before this Court

At the hearing of the matter, it came to the Court's attention that the applicant had now been evicted by the first respondent in terms of the eviction order under Case No. MC39520/16.

The applicant confirmed that she was evicted on 23 May 2023.

She added that she had since filed a spoliation application in the High Court, which matter was still pending determination.

It became apparent that the instant application had since been overtaken by events and was now academic.

This point was appreciated by both parties, but, the applicant was resolute in proceeding with the matter despite its nominal bearing on her present predicament....,.

Counsel, on behalf of the first respondent, submitted that the matter was now merely academic following the applicant's eviction from the property. As such, no consequential relief from this Court would restore her occupation since eviction was made in terms of a valid order under Case No. MC39520/16....,.

The applicant's eviction from the first respondent's property, before the set down of this hearing, has a direct bearing on the present proceedings.

The matter has now become a classically academic dispute with no practical impact or effect flowing from any order that may be handed down by this Court in favour of the applicant's instant or prospective applications, viz. for direct access and for substantive relief in the main matter.

Her lawful eviction, granted in terms of the order under Case No. MC39520/16, means that any declaratory and other relief granted by this Court upsetting the judgments of the Supreme Court become abstract and meaningless, nothing more than bruta fulmina, by reason of the hard fact that she is no longer in occupation of the first respondent's property....,.

It would clearly not be in the interests of justice to grant the applicant condonation before this Court in an entirely academic dispute.

The sole reason for entertaining the applicant's case thus far is to ensure finality to the present and intended proceedings before this Court.

In declining the instant application for condonation, I am fortified by the case of Khupe & Anor v Parliament of Zimbabwe & Ors CC20-19, wherein MALABA CJ emphasised the following regarding mootness:

“The question of mootness is an important issue that the Court must take into account when faced with a dispute between parties. It is incumbent upon the Court to determine whether an application before it still presents a live dispute as between the parties. The question of mootness of a dispute has featured repeatedly in this and other jurisdictions. The position of the law is that a court hearing a matter will not readily accept an invitation to adjudicate on issues which are of 'such a nature that the decision sought will have no practical effect or result.'”

See also Movement for Democratic Change & Ors v Mashavira & Ors SC56-20....,.

In the result, it is ordered that the application be and is hereby dismissed with no order as to costs.

CC09-23 : TENDAI MASHAMANDA vs BARIADE INVESTMENTS (PVT) LTD and PUWAYI CHIUTSI and REGISTRAR OF DEEDS and SHERIFF OF THE HIGH COURT and ELLIOT ROGERS and ATTORNEY GENERAL ZIMBABWE
Ruled By: GARWE JCC, HLATSHWAYO JCC and PATEL JCC

This is an application for direct access to this Court made in terms of Rule 21 of the Constitutional Court Rules 2016 ("the Rules").

The applicant is Tendai Mashamanda. The first respondent is Bariade Investments (Pvt) Limited, a company duly incorporated in terms of the laws of Zimbabwe. It was the appellant in SC09-20. The second respondent, Puwai Chiutsi, was one of the respondents in SC09-20.

The third respondent, the Registrar of Deeds is a public official appointed in terms of section 4 of the Deeds Registry Act [Chapter 20:05]. The fourth respondent is the Sheriff of the High Court cited as the officer responsible for executing judgments of the High Court.

The fifth respondent, Eliot Rogers, was the fifth respondent in SC09-20.

It is the applicant's case that the Supreme Court, in its determination in SC09-20, infringed several of his constitutional rights. These rights are the following;

(i) The right to the protection of the law which he says is enshrined in section 56(1) of the Constitution;
(ii) The right to a fair hearing in terms of section 69(2) of the Constitution; and
(iii) The right of access to the courts enshrined in terms of section 69(3) of the Constitution.

BACKGROUND

Sometime in 2012, the fifth respondent (Elliot Rogers) obtained judgment in the High Court under HC3331/14 against the second respondent (Puwayi Chiutsi). The court ordered the sale in execution of the second respondent's property known as the remainder of Subdivision C of Lot 6 of Lots 190,191,192,193,194 and 195, Highlands Estate of Welmoed (hereinafter referred to as “the property”).

On 18 September 2017, the first respondent participated in the Sheriff's sale by public auction of the property and was declared the highest bidder after offering to pay USD$270,000.

Thereafter, the second respondent lodged an objection to the confirmation of the sale by the fourth respondent (Sheriff of the High Court) in terms of Rule 359(1) of the High Court Rules 1971 (hereinafter referred to as “the High Court Rules”) and the objection was dismissed.

Subsequently, the second respondent filed a court application under case number HC11349/17 in which he sought the setting aside of the confirmation by the Sheriff of the sale of the disputed property, to the first respondent.

MATHONSI J..., dismissed the application on the basis that the second respondent had conducted himself in a dishonourable and unworthy manner by mis-appropriating trust funds, and that “he had employed every trick in the book to avoid paying his debt” to the fifth respondent.

The second respondent then proceeded, unsuccessfully, to file an urgent chamber application for an interdict against the transfer of the property pending the outcome of the appeal that he had filed.

Notwithstanding the fact that the second respondent had failed to secure an interdict against transfer of the property in question to the first respondent, the latter (Bariade Investments (Pvt) Ltd) submitted it became aware that the second respondent had not only sold the property in question, but had also transferred it into the applicant's name on 8 February 2019 under Deed of Transfer No.708/19.

The fifth respondent (Elliot Rogers) then filed an urgent chamber application under HC1444/19 in which he sought the cancellation of Deed of Transfer No.708/19.

This was on the basis, that, the second respondent's conduct was fraudulent since he had knowingly sold the property which was under judicial attachment without the knowledge of the fourth and fifth respondents (Sheriff of the High Court and Elliot Rogers).

As a result, the fifth respondent argued, the sale in question was null and void.

The court a quo dismissed the application, not on the merits, but on the basis that it could not grant a final order in an urgent chamber application which sought a provisional order.

The fifth respondent went on to appeal to this Court against that decision, and the appeal was heard jointly with the second respondent's appeal.

Thereafter, the first respondent filed an application for the cancellation of Deed of Transfer No.708/19 under HC2620/19.

The court a quo dismissed the application holding that the matter was res judicata because it had already been decided by MANZUNZU J in HC1444/19, a circumstance that rendered the court functus officio.

The court also held, that, a pignus judiciale could not conclusively be considered to have been created over the property in question since the first respondent had not proved the existence of a caveat registered against the title deed in the first respondent's name.

Aggrieved, the first respondent noted an appeal to the Supreme Court ('the court a quo') under case number SC9-20. The argument advanced by the first respondent was that the High Court had erred in coming to the conclusion that the material and live issue of the second respondent's fraud and forgery was not relevant to the just determination of the matter which was before it.

It was the first respondent's further argument, that, the High Court had erred when it came to the conclusion that the judgment of the High Court, per MANZUNZU J, concerned the same subject matter as the application before it.

The first respondent also argued, that, the High Court had erred in not coming to the conclusion that the question of equities was not a live issue before it and that it (the Court) had to determine, instead of, the question of the validity of the sale and transfer to the appellant in view of the pignus judiciale brought about by the attachment in execution.

In disposing of the matter, the court a quo held that the original judgment by MATHONSI J..., had been competently made and that it was an order against the transfer of the property in question otherwise than through the process ordinarily followed after a sale in execution is duly confirmed.

The court a quo went further to hold, that, although the property was still in the second respondent's name, it had ceased to be his to deal with as he wished from the moment that it was attached in execution, and, thereafter, sold to the appellant because of the pignus that was operating against the property.

The court a quo then dealt extensively with the judgment by CHITAPI J under judgment number HH477-21.

In analysing the judgment, the court a quo found that the processes leading to the default judgment granted by CHITAPI J, as well as the order itself, were irregular. That judgment was subsequently reviewed by the court a quo in terms of section 25 of the Supreme Court Act [Chapter 7:13]. The result was that the order of CHITAPI J was vacated.

The applicant was aggrieved and has approached this Court for direct access in terms of section 167(5)(a) of the Constitution of Zimbabwe.

The applicant submits, that, three of his fundamental rights enshrined in Chapter 4 of the Constitution were infringed by the Supreme Court in SC09/20 through judgment number SC24-22.

As already noted, the three rights that the applicant alleges were infringed are the right to the protection of the law as enshrined in terms of section 56(1) of the Constitution, the right to a fair hearing enshrined in section 69(2) of the Constitution, and the right of access to the courts as enshrined in section 69(3) of the Constitution.

The first respondent (Bariade Investments (Pvt) Ltd) has opposed the application and has argued that the applicant lost the appeal on a non-constitutional matter.

The first respondent further argues, that, the court a quo determined the appeal that was before it, prior to dealing with the irregular judgment by invoking section 25 of the Supreme Court Act.

None of the applicant's rights were therefore infringed either by the Supreme Court or by any other person.

It is further argued, that, the provisions of section 25 of the Supreme Court Act are constitutional and that the Supreme Court's action, of invoking that section, are valid.

The fifth respondent (Elliot Rogers) has also opposed the application and his first argument is that the present application is an abuse of court process because the Supreme Court did not infringe any of the applicant's rights in its determination.

He further contends, that, the court a quo acted within its jurisdiction, and that it exercised its review powers according to section 25(2) of the Supreme Court Act.

He further submits, that, a pignus judiciale is a recognized part of our law.

PROCEEDINGS IN THIS COURT

Counsel for the applicant argued, that, it is now trite in this jurisdiction that a party cannot challenge a decision of the Supreme Court on the basis that it was wrong. However, a Supreme Court decision can infringe a party's rights in the manner in which it determines the matter.

He submitted, that, the Supreme Court infringed the applicant's right to equal protection of the law in terms of section 56(1) of the Constitution, the right to a fair hearing in section 69(2), and the right of access to the courts as enshrined in section 69(3) of the Constitution.

Counsel for the applicant further argued, that, the Supreme Court acted without jurisdiction when it set aside the High Court's decision under judgment number HH477-21. He argued that the effect of CHITAPI J's judgment rendered the appeal moot.

According to the applicant, the setting aside of the High Court's decision was unprocedural as the Supreme Court acted outside the record.

It was the applicant's further argument, that, the Supreme Court had erroneously invoked its review authority under section 25(2) of the Supreme Court Act [Chapter 7:13] in reviewing a default judgment.

This, it was submitted, is contrary to its review powers.

It was the applicant's argument that a default judgement cannot be reviewed under the limited review powers granted to the Supreme Court.

Counsel for the applicant further argued, that, the Supreme Court applied a non-existent law.

Whilst the law holds that the Supreme Court cannot be wrong; it cannot, however, invent a law and must always seek to apply an existing law.

Per contra, counsel for the first respondent raised a preliminary point, that, the applicant did not have locus standi to challenge the section 25(2) of the Supreme Court Act portion of the judgment of the Supreme Court.

It was his argument that the judgment dealt with a long-standing dispute regarding execution which had started in 2017 and was completed in 2018. Counsel for the first respondent submitted, that, the applicant only came into the picture in 2019. He further argued, that, in the circumstances, having a financial interest did not endow the applicant with the necessary locus standi.

In response to the point in limine raised by the first and fifth respondents, counsel for the applicant submitted that such an argument was a misdirection. He submitted that the applicant had locus standi on the basis that the Supreme Court infringed his rights in terms of section 56(1), section 69(2) and (3) of the Constitution.

On the merits, counsel for the first respondent submitted that there were no prospects of success in this matter.

He argued that there was no law that was raised by the applicant that would have protected the allegedly infringed rights. Counsel for the first respondent further argued, that, the Supreme Court provided ample authority for the view that a property subject to a pignus judiciale could not be sold.

He argued that the decision made by the Supreme Court was therefore not novel, and, accordingly, the argument by the applicant lacked merit.

He further argued, that, the applicant's submission that a default judgment cannot be reviewed was based on an entirely misplaced principle.

He stated that there was no principle that disabled the review of a default judgement.

Counsel for the first respondent further stated, that, section 25 of the Supreme Court Act gave the Supreme Court the jurisdiction to act in the manner it did. It was his contention that the question of review was addressed and that none of the parties in the Supreme Court were willing to defend the default judgment granted by CHITAPI J.

Counsel for the fifth respondent associated herself with the preliminary point raised by the first respondent in relation to the applicant's locus standi to bring the application.

On the merits, she submitted that the application could not succeed as articulated by the first respondent.

However, she added that the content of the right in section 18(1) of the old Constitution now appears and is subsumed in and under numerous other provisions of the current Constitution which are, for example, section 68, section 69 and section 70. She argued that it is these sections that continue to give life to the right previously protected in section 18(1) of the old Constitution.

She further argued, that, very minimal submissions had been made by the applicant in impugning section 25(2) of the Supreme Court Act.

She submitted, that, the impugned provision would remain valid until declared unconstitutional. She submitted that it was trite in this jurisdiction, that, a court will not readily declare a provision unconstitutional.

It was her argument, therefore, that, if there is an alternative interpretation that avoids declaring a provision invalid, the Court ought to follow that approach.

In the circumstances, she argued that there needed to be more substantial arguments made than a mere reference to constitutional invalidity contained in two paragraphs....,.

ISSUE FOR DETERMINATION

The sole issue that arises for determination in this application is whether or not it is in the interest of justice to grant direct access to this Court.

Applications of this nature are regulated by the rules of this Court. The applicant therefore has to first satisfy the requirements as set out in Rule 21(3) of the Constitutional Court Rules.

It was stated in Liberal Democrats & Ors v The President of the Republic of Zimbabwe E.D. Mngangagwa N.O. & Ors CC07-18…, as follows:

“…, direct access to the Constitutional Court is an extraordinary procedure granted in deserving cases that meet the requirements prescribed by the relevant Rules of the Court.”

Rule 21(3) of the Constitutional Court Rules contains the requirements that ought to be satisfied in an application of this nature. It states the following:

“(3) An application in terms of subrule (2) shall be filed with the Registrar and served on all parties with a direct or substantial interest in the relief claimed and shall set out —

(a) The grounds on which it is contended that it is in the interests of justice that an order for direct access be granted; and

(b) The nature of the relief sought and the grounds upon which such relief is based; and

(c) Whether the matter can be dealt with by the Court without the hearing of oral evidence, or, if it cannot, how such evidence should be adduced and any conflict of facts resolved.”…,.

CURRIE I and De WAAL J in “The Bill of Rights Handbook” 6th edn, Juta & Co (Pty) Ltd, Cape Town, 2013…, discuss the importance of the requirement that an applicant should show that it is in the interest of justice that the application be granted. They state as follows:

“Direct access is an extraordinary procedure that has granted by the Constitutional Court in only a handful of cases….,.

The Constitutional Court is the highest court on all constitutional matters.

If constitutional matters could be brought directly to it as a matter of course, the Constitutional Court could be called upon to deal with disputed facts on which evidence might be necessary, to decide constitutional issues which are not decisive of the litigation and which might prove to be of purely academic interest, and to hear cases without the benefit of the views of other courts having constitutional jurisdiction.

Moreover, it is not ordinarily in the interests of justice for a court to sit as a court of first and last instance, in which matters are decided without there being any possibility of appealing against the decision given.”

It is settled law that the appellate jurisdiction of the Constitutional Court is triggered only where a constitutional matter arose in the court a quo and was decided by that court: see Sadziwani v Natpak (Private) Limited & Ors CC15-19…,.

Section 332 of the Constitution defines a constitutional matter as “a matter in which there is an issue involving the interpretation, protection or enforcement of this Constitution.”

The jurisdictional effect of the definition of a constitutional matter was discussed in Moyo v Sergeant Chacha and Ors CC19-17…, as follows:

“The import of the definition of 'constitutional matter' is that the Constitutional Court would be generally concerned with the determination of matters raising questions of law, the resolution of which require the interpretation, protection, or enforcement of the Constitution.

The Constitutional Court has no competence to hear and determine issues that do not involve the interpretation or enforcement of the Constitution or are not connected with a decision on issues involving the interpretation, protection or enforcement of the Constitution.”

It also ought to be noted, that, the mere citation of constitutional provisions or alleged infringements of constitutional rights does not mean that a constitutional issue has been raised.

In Magurure and Ors v Cargo Carriers International Hauliers (Pvt) Ltd t/a Sabot CC15-16 the Court had occasion to deal with this aspect. It stated as follows…,.:

“Have the applicants brought to the Court for determination a matter in which there is an issue involving the interpretation, protection or enforcement of the Constitution?

The fact that the applicants allege that the respondent has, by the conduct it is alleged to have committed, infringed their fundamental right to fair and safe labour practices enshrined in section 65(1) of the Constitution does not mean that they have raised a constitutional matter.

It is for the Court to decide whether the determination of the legality of the conduct of the respondent, if proved, would require the interpretation and application of section 65(1) of the Constitution.”

The applicant in casu merely challenges the correctness of the findings made by the court a quo but no constitutional issues arise therefrom.

In The Cold Chain (Pvt) Ltd t/a Sea Harvest v Makoni 2017 (1) ZLR 14 (CC)…, the Court discussed the test to be applied in determining whether or not the court a quo determined a constitutional matter. It held as follows:

“The principles to be applied in the determination of the question whether the Supreme Court determined a constitutional matter are clear. It is not one of those principles that the court against whose judgment leave to appeal is sought should have referred to a provision of the Constitution.

There ought to have been a need for the subordinate court to interpret, protect or enforce the Constitution in the resolution of the issue or issues raised by the parties. The constitutional question must have been properly raised in the court below. Thus, the issue must be presented before the court of first instance and raised again at or at least be passed upon by the Supreme Court, if one was taken.”…,.

The applicant alleges, that, his right to equal protection of the law, in terms of section 56(1) of the Constitution, was violated by the manner in which the court a quo disposed of the matter.

In the court a quo was an appeal from the decision of the High Court, which decision was not based on the enforcement or interpretation of the Constitution.

The court a quo determined, that, it was clear that the second respondent could not dispose of the property whose sale the court, under HC604/18, had confirmed [which, in our view, was correct].

Once the Sheriff's sale was confirmed by the High Court, the second respondent could no longer deal with or dispose of the property as he wished. The decision under HH604-18 was competently made and should remain extant.

It was further determined by the court a quo, that, the second respondent, being a senior legal practitioner, could not have failed to appreciate that he was acting contrary to law.

It was further determined, that, because there was a pignus judiciale over the property, the second respondent did not have the legal competency to dispose of the property after it was attached.

The decision of the court a quo was made in accordance with the law. I find nothing to fault in the reasoning of the court a quo on this point. The court a quo acted within the confines of the law, and, as determined in Denhere, supra, the Court remarked thus at p24 of the judgment:

“When the Supreme Court, like any other court, sits to decide an appeal, all it is required to do is to dispose of the matter in a manner which is consistent with the law. A judicial decision is the end result of a process that is regulated by law. In other words, a person has a right to a fair judicial process.”

Such determination by the court a quo cannot be said to have been irregular.

I find no basis for the suggestion that the applicant's rights, under section 56 of the Constitution, were violated by the court a quo.

There is no indication as to how the court a quo could have violated the applicant's right to equal protection of the law.

The allegations by the applicant are meritless and thus it is not in the interest of justice to grant an order of direct access to this Court.

The applicant's further grievance appertains to the manner in which the court a quo handled the matter.

His argument was that the court acted without jurisdiction which was then contrary to a fair hearing under section 69(2) of the Constitution and a mockery of the right of access to the courts as protected by section 69(3) of the Constitution.

The applicant further argued, that, determining a matter under section 25(2) of the Supreme Court Act, without hearing the parties on whether the section was applicable in the circumstances, is a clear infringement under section 69(2) and (3) of the Constitution.

The applicant's contention is that the court a quo acted without jurisdiction when it set aside the decision of CHITAPI J under HH477-21.

The judgment under HH477/21 was a default judgment which set aside the decision by MATHONSI J…, under HH604-18 which had endorsed the confirmation of the sale of the contested property by the Sheriff.

The court a quo found that the determination by CHITAPI J was not consistent with what had been sought by the parties and invoked the powers of review under section 25 of the Supreme Court Act.

The Supreme Court Act confers upon the Supreme Court various powers, and, one such provision is section 25. The section provides as follows:

“REVIEW POWERS

1. Subject to this section, the Supreme Court and every judge of the Supreme Court shall have the same power, jurisdiction, and authority as are vested in the High Court and the judges of the High Court, respectively, to review the proceedings and decisions of inferior courts of justice, tribunals, and administrative authorities.

2. The power, jurisdiction and authority conferred by subs (1) may be exercised whenever it comes to the notice of the Supreme Court, or a judge of the Supreme Court, that an irregularity has occurred in any proceedings or in making of any decision notwithstanding that such proceedings are, or such decision is, not the subject of an appeal or application to the Supreme Court.”…,.

From a reading of the above provision, the Supreme Court has the power to review decisions of lower courts. These powers are anchored by the provisions of section 169(2) of the Constitution which provides thus:

“Subject to subsection (1), an Act of Parliament may confer additional jurisdiction and powers on the Supreme Court.”

As observed in the case of Chombo v National Prosecuting Authority & Ors SC158–21, the Supreme Court's power of review has always been there and that power has been made use of in this jurisdiction since time immemorial.

The powers of review can be invoked by a court mero motu whenever an irregularity has come to the court's attention.

The applicability of section 25 of the Supreme Court Act was extensively canvassed in the case of PG Industries Zimbabwe (Pvt) Ltd v Bvekerwa & Ors SC53-16…, wherein it was stated:

"In terms of section 25(2), this court is imbued with powers to set aside proceedings that are irregular even if those proceedings are not the subject of an appeal or application before the court. I am fortified in this view by the remarks of ZIYAMBI JA in The Chairman Zimbabwe Electoral Commission & 2 Ors v Roy Bennet & Anor SC48-05 as follows:

'Section 25(2) confers additional jurisdiction which may be exercised when it comes to the notice of the Supreme Court, or a judge of that court, that an irregularity has occurred in proceedings not before it on appeal or application. Thus, section 25(2) deals with irregularities in respect of which no appeal or application is before the Supreme Court and the review is undertaken at the instance of the Supreme Court and not of any litigant.'”

The Supreme Court has mostly recently exercised this power of review by setting aside decisions of the High Court: see MDC & Ors v Timveos & Ors SC09-22.

What the court a quo did in casu was not any different from what the Supreme Court has been empowered to do.

An irregularity occurred and then it came to the attention of the court. Acting in terms of the powers conferred upon it, in terms of section 25(2) of the Supreme Court Act, the court a quo duly exercised its powers and set the decision aside.

The court a quo acted in terms of the law.

The review powers do not require the court to invite parties to first make submissions before the court makes a decision, although the court will ordinarily bring to the attention of the parties the irregularity, which it duly did in this case (and none of the parties were prepared to support the irregularity).

The court simply makes a determination mero motu after noticing an irregularity and alerting the parties to it were possible.

The court a quo, in exercising its review powers, cannot, in the circumstances, be said to have violated the applicant's right to a fair hearing and access to the courts. The right to a fair hearing was not violated neither was the right of access to court.

The application has no prospects of success in that regard.

Taking into account the above, I am of the considered view that there was no misdirection by the court a quo justifying the grant of direct access.

The applicant is merely dissatisfied by the findings of the Supreme Court on the merits. He was aggrieved that he did not receive a judgment that was in his favour. He seeks a second bite of the cherry.

However, the law does not allow the Court to undertake such a course to review decisions of the court a quo on non-constitutional matters. That is so because decisions of the court a quo are final, except in matters where the court a quo makes a determination on a constitutional matter.

The applicant cannot be allowed to approach the Court in order to attack the correctness of the decision of the court a quo on a non-constitutional matter.

As stated in Lytton Investments supra at pp23-24 of the judgment:

“What is clear is that the purpose of the principle of finality of decisions of the Supreme Court on all non-constitutional matters is to bring to an end the litigation on the non-constitutional matters. A decision of the Supreme Court on a non-constitutional matter is part of the litigation process. The decision is therefore correct because it is final. It is not final because it is correct.”

Once it is accepted that the court a quo's decision was on a non-constitutional matter, the question of the constitutionality of the decision falls outside the jurisdiction of the Constitutional Court.

The jurisdiction of the Constitutional Court cannot be exercised over the matter of the correctness or otherwise of the decision of the court a quo on a non-constitutional matter because doing so would not serve the purpose and objective for which the narrow and specialised jurisdiction was conferred on the Constitutional Court under the Constitution.

CC10-21 : ERICKSON MVUDUDU vs AGRICULTURAL AND RURAL DEVELOPMENT AUTHORITY (ARDA) and ATTORNEY GENERAL OF ZIMBABWE
Ruled By: GARWE JCC, MAKARAU JCC and GOWORA JCC

This is an application for direct access to this Court made in terms of section 167(5) of the Constitution of Zimbabwe 2013 (“the Constitution”) as read with Rule 21 of the Constitutional Court Rules 2016 (“the Rules”).

The applicant intends to approach the Court, in terms of section 85(1) of the Constitution, seeking an order that his rights, as enshrined in the Constitution, were infringed by the first respondent's Non-Executive Board members, its Board, the arbitrators awards, Labour Court judgments, and the Supreme Court.

The rights so infringed being:

(i) The right to equal protection of the law in terms of section 56(1) of the Constitution;

(ii) The right to privacy in terms of section 57(c) and (e) of the Constitution;

(iii) The right to access information in terms of sections 62(2) and 62(3) of the Constitution;

(iv) Labour rights in terms of sections 65(1) and 65(4) of the Constitution;

(v) The right to administrative justice in terms of sections 68(1) and 68(2) of the Constitution;

(vi) The right to a fair hearing in terms of sections 69(2) and 69(3) of the Constitution; and

(vii) The right to property in terms of sections 71(3) and 71(4) of the Constitution.

At the commencement of the hearing, counsel, on behalf of the Attorney-General, took a preliminary point regarding the citation of the Attorney General as a party to these proceedings.

It was her view, that, there was no law being impugned in the application, and that, as a consequence, the joinder of the Attorney-General as a party was irregular. She applied for his removal as a party to the proceedings.

The applicant was of the view that the Rules required his citation, but, was constrained to concede that the citation had been done in error. Counsel, on behalf of the first respondent, did not object to the application, which was granted by consent.

The Attorney General was, therefore, removed from the proceedings and excused from further participation.

This left one respondent as a party, and, any reference to the respondent will be in respect of the first respondent herein.

FACTUAL BACKGROUND

The applicant was formerly employed by the respondent as its General Manager cum Chief Executive Officer. On 26 February 2009, he was sent on special leave, and, on 19 May 2009, he was notified by the respondent of its decision to terminate his employment.

Aggrieved by the decision to terminate his employment, the applicant filed a complaint of unfair dismissal. The matter proceeded to arbitration. The arbitrator found in his favour, set aside the dismissal, and ordered the reinstatement of the applicant with effect from the date of his dismissal.

Thereafter, negotiations for reinstatement having failed, the matter was, again, referred to the arbitrator for quantification of damages in lieu of reinstatement. The arbitrator quantified his award for damages in lieu of reinstatement and ordered the respondent to pay the same.

The applicant, being dissatisfied with the arbitrator's award, appealed to the Labour Court on several grounds pertaining to the question of his reinstatement, the date of termination of his employment, his correct monthly salary, and his entitlement to contractual benefits.

The respondent, in turn, cross-appealed, defending the propriety of its decision not to reinstate the applicant and challenged the arbitrator's award of punitive damages, and, further to this, his failure to deduct certain amounts allegedly owed by the applicant to the respondent.

The Labour Court dismissed the appeal and partially allowed the cross appeal to the extent of setting aside the arbitrator's award of punitive damages.

Consequently, the applicant appealed to the Supreme Court, and, the Court ordered a minor favourable adjustment to the contractual benefits that the applicant was entitled to. The matter was thereafter remitted to the arbitrator to deal with the adjustment.

Before the arbitrator, the applicant raised several preliminary issues, which were dismissed. The applicant proceeded to appeal against that interim award to the court a quo.

That appeal was struck off the roll on the basis that he had improperly appealed against an interim order.

Aggrieved, the applicant filed an application for leave to appeal to the Supreme Court. The matter was set down for the hearing of the application for leave to appeal at which stage the applicant made an oral application for the joinder to those proceedings of an application for referral to this Court.

The application for joinder was dismissed, and the two matters were heard separately.

In its judgment, viz, Erickson Mvududu v Agricultural and Rural Development Authority LC/H/23/21 dated 26 March 2021, the Labour Court made a finding that the application for referral was frivolous and vexatious. The application for leave to appeal to the Supreme Court was still pending at the time of the hearing of this application.

It proceeded to dismiss the application for referral.

Aggrieved by the dismissal of the referral application, the applicant filed the present application on 21 April 2021.

Even though he was the party bringing the suit, contrary to settled procedural principle, the applicant raised a number of preliminary issues for determination.

He averred, in limine, that, the respondent had no authority to terminate his employment, to appoint, suspend, or discharge him, to pay such remuneration and allowances to him, and to grant such leave of absence to him, being a Board member in terms of the Agricultural and Rural Development Authority Act [Chapter 18:01] (“the Act”).

As such, he submitted that the arbitrator, and all courts involved in the matter, ought not to have granted audience to the respondent without first determining the issue of its locus standi in judicio.

In so far as the judgment of the Labour Court is concerned, the applicant contends that the decision violates his right as enshrined in section 56(1) of the Constitution. He avers, that, the conclusion that his application was frivolous or vexatious, was, in itself, a violation of the Constitution.

His argument is that the conclusion by the Labour Court, that, the decision of the Supreme Court on the matter could not be challenged was outside the scope of sections 44 and 45 of the Constitution.

He contended, that, where a court misconstrues a law, applies it incorrectly, or acts outside the law, there exists a prima facie infringement of the right to equal protection of the law.

It was the applicant's contention, that, the existing judgments in this matter were obtained through fraudulent misrepresentation of facts by the respondent who lied to the courts and misrepresented to the courts that it had powers to terminate the applicant's employment when it did not have such powers. In that regard, he alleged that there was no termination in the first place.

As such, he alleged that the application was neither frivolous nor vexatious as found by the Labour Court.

The applicant, therefore, submitted that his application enjoyed prospects of success as the Board, which included him, was not the appointing authority, and, therefore, had no powers to terminate or discharge him, neither did the respondent.

He also contended, that, his salary was incorrectly calculated and that the courts misconstrued the law or acted outside the law to the extent that they rendered improper decisions.

It is on this premise that the applicant argued that his rights had been infringed.

He submitted, that, he has no other remedy and stated that there was no constitutional matter before the Supreme Court; hence there was no room to appeal.

The application was opposed by the respondent.

It averred, that, the present application for direct access was improper as there was an application for referral to the Constitutional Court that was dismissed by the Labour Court, which raised similar issues to the ones that the applicant was now raising.

It was also argued, that, the present application did not raise any constitutional issues but that the essence of the application was to seek the re-opening of the labour issues between the parties, which have been dealt with conclusively up to the highest court of the land.

It was further contended, that, in the draft order of the intended substantive application, what the applicant was seeking was the setting aside of all decisions and payment of alleged arrear salaries and benefits, thereby indirectly seeking reinstatement.

It was submitted that issues to do with unlawfulness or otherwise of the termination of the applicant's employment contract, and the remedy therefor, had already been determined to finality by the Supreme Court and hence the matter was now res judicata.

In that regard, the respondent submitted that the application was frivolous and vexatious, and, further to that, it was not in the interests of justice that it be granted as it did not enjoy any prospects of success.

It did not raise constitutional issues.

It was also submitted, that, in all proceedings leading up to the Supreme Court, the applicant never, at any stage, challenged or disputed the respondent's standing in the proceedings.

Lastly, it was averred that the applicant had another remedy, which is to seek the enforcement of the damages which he was awarded for the alleged unfair dismissal.

In the notice accompanying the present application for direct access, the applicant makes the statement, that, he is seeking leave following upon the dismissal of his application for referral of a constitutional question to the Court.

It becomes pertinent, therefore, to determine whether or not this is the type of application contemplated by law consequent to a dismissal of an application for referral, and, if so, whether or not the application as currently framed, is properly before the Court.

Whether this matter is properly before the Court

The Labour Court had before it an application for the referral of alleged violations of the applicant's rights by all the parties and entities mentioned above. The facts upon which the application for referral was based are identical to those alleged in the application for direct access.

In view of the procedure adopted by the applicant, it becomes necessary, for the sake of completeness, that, the relief sought before the Labour Court, and this Court, be set out in full.

The constitutional issues that the applicant sought to be referred were the following:

1. That, the Non-Executive Board members, the respondent's Board, or the respondent had no and have no locus standi and have no right to be heard in this court in terms of sections 4, 6, 7, 8, 9, 11, 13, 23, 20(1) First Schedule [section 21(1) (sic)] – POWERS OF AUTHORITY, paras 12 and 33 of the Agricultural and Rural Development Authority Act [Chapter 18:01] as read with section 5 of Statutory Instrument 15 of 2006 to take any action it took in this matter.

The Arbitrators awards, Labour Court judgments and Supreme Court judgment are nullities at law.

The Non-Executive Board members, the respondent's Board, the respondent, the Arbitrators and the courts are infringing the appellant's fundamental rights as enshrined in sections 11 and 18(1) of the former Constitution of Zimbabwe and sections 3(1)(a), 3(1)(b), 3(1)(c), 3(1)(h), 44(2), 47, 56(1), 57(c), 65(1), 65(4), 68(1), 68(2), 71(3), 71(4), 85(1), and 165(1) of the Constitution of Zimbabwe Amendment (No.20) Act 2013.

2. The Non-Executive Board members, the respondent's Board, the respondent, the Arbitrators and the courts have no authority to terminate the applicant's contract of employment in terms of sections 23, 20(1) First Schedule [section 21(1)] (sic) – POWER OF AUTHORITY, paras 12 and 33 of the Agricultural and Rural Development Authority Act [Chapter 18:01] as read with section 5 of Statutory Instrument 15 of 2006.

The Non Executive Board members, the respondent's Board, the respondent, the Arbitrators and the courts are infringing the appellant's fundamental rights as enshrined in sections 11 and 18(1) of the former Constitution of Zimbabwe and sections 3(1)(a), 3(1)(b), 3(1)(c), 3(1)(h), 44(2), 47, 56(1), 57(c), 57(e), 62(2), 62(3), 65(1), 65(4), 68(1), 68(2), 68(3), 71(3), 71(4), 85(1), and 165(1) of the Constitution of Zimbabwe Amendment (No.20) Act 2013.

3. The Non-Executive Board members, the respondent's Board, the respondent, the Arbitrators and the courts have no authority to unilaterally refuse and endorse the refusal to reinstate the applicant in terms of section 89(2)(c)(iii) of the Labour Act [Chapter 28:01], sections 23, 20(1) First Schedule [section 21(1) (sic) – POWERS OF AUTHORITY, paras 12 and 33 of the Agricultural and Rural Development Authority Act [Chapter 18:01] as read with section 5 of Statutory Instrument 15 of 2006.

The Non Executive Board members, the respondent, the Arbitrators and the courts are infringing the appellant's fundamental right as enshrined in sections 11(a) and 18(1) of the former Constitution of Zimbabwe and section 56(1) of the Constitution of Zimbabwe Amendment (No.20) Act 2013.

4. The Non-Executive Board members, the respondent's Board, the respondent, the Arbitrators and the courts have no power to violate the applicant's right to protection of the law by ordering quantification of damages without a legal termination of the applicant's contract of employment.

The Non-Executive Board members, the respondent's Board, the respondent, the Arbitrators and the courts are infringing the appellant's fundamental rights as enshrined in section 20(1) First Schedule [section 21(1) (sic)] – POWERS OF AUTHORITY, paras 12 and 33 of the Agricultural and Rural Development Authority Act [Chapter 18:01]; sections 6 and 7 of the Labour Act [Chapter 28:01]; section 5 of Statutory Instrument 15 of 2006; sections 11(a), 16(1), 16(3) and 18(1) of the former Constitution of Zimbabwe and sections 3(1)(a), 3(1)(b), 3(1)(c), 3(1)(h), 44(2), 47, 56(1), 57(c), 57(e), 62(2), 62(3), 65(1), 65(4), 68(1), 68(2), 68(3), 71(3), 71(4), 85(1), and 165(1) of the Constitution of Zimbabwe Amendment (No.20) Act 2013.

5. In casu, the Non-Executive Board members, the respondent's Board, the respondent, the arbitrators and the courts have no authority to invoke the principle of retrospectivity without legal termination of the applicant's contract of employment.

The Non-Executive Board members, the respondent's Board, the respondent, the arbitrators and the courts are infringing the appellant's fundamental rights as enshrined in sections 11, 18(1) of the former Constitution of Zimbabwe and sections 3(1)(a), 3(1)(b), 3(1)(c), 3(1)(h), 44(2), 47, 56(1), 57(c), 57(e), 62(2), 62(3), 65(1), 65(4), 68(1), 68(2), 68(3), 71(1), 71(3), 71(4), 85(1), and 165(1) of the Constitution of Zimbabwe Amendment (No.20) Act 2013.

6. The applicant's backpay (salaries and benefits), insurance benefits, and pension benefits are vested rights which cannot be taken away without compensation.

The respondent's management, the Non-Executive Board members, the respondent's Board, the respondent, the arbitrators and the courts cannot take away the applicant's salary and benefits in terms of section 13(2) of the Labour Act [Chapter 28:01].

The respondent's management, the Non-Executive Board members, the respondent's Board, the respondent, the arbitrators, and the courts are infringing the appellant's fundamental rights as enshrined in section 16(1) of the former Constitution of Zimbabwe and sections 66(2), 62(3), 71(1), and 71(4) of the Constitution of Zimbabwe Amendment (No.20) Act 2013.

7. The Non-Executive Board members, the respondent's Board, the respondent, the arbitrators, and the courts have no authority to set the remuneration of the applicant in terms of section 20(1) First Schedule [section 21(1)(sic)] – POWERS OF AUTHORITY, para 12 of the Agricultural and Rural Development Authority Act [Chapter 18:01], section 161(1) of the former Constitution of Zimbabwe and section 71(1) of the Constitution of Zimbabwe Amendment (No.20) Act 2013.

8. The applicant's premature termination of employment, illegal termination of employment and/or invoking the principle of retrospectivity take away the applicant's vested right to back-pay (salaries and benefits) and infringe the appellant's fundamental rights as enshrined in section 16(1) of the former Constitution of Zimbabwe and sections 62(2), 62(3), 71(1) and 71(4) of the Constitution of Zimbabwe Amendment (No.20) Act 2013.

In the meantime, the relief sought from the Constitutional Court, following the grant of an order for direct access, is framed in the following manner:

“1. That, the applicant's rights to the protection of the law enshrined in section 56(1) of the Constitution of Zimbabwe; to access information enshrined in sections 62(2) and 62(3) of the Constitution of Zimbabwe; to labour rights enshrined in sections 65(1) and 65(4) of the Constitution of Zimbabwe; to administrative justice enshrined in sections 68(1) and 68(2) of the Constitution of Zimbabwe; to a fair hearing enshrined in sections 69(2) and 69(3) of the Constitution of Zimbabwe; and to right to property enshrined in sections 71(3) and 71(4) of the Constitution of Zimbabwe were infringed by the Arbitrator's Interim Award dated 14 July 2010, the Arbitrator's Award dated 28 October 2010, the Labour Court's in its Judgment No. LC/H/87/14, the Supreme Court in its Judgment No. SC58-15, the Arbitrator's Interim Arbitration Award of 26 July 2017, the Labour Court's Judgment No. LC/H/279/2018, the Labour Court's Judgment No. LC/H/23/2019 and the Labour Court's Judgment No. LC/H/23/2021 in the matter of Erickson Mvududu v Agricultural and Rural Development Authority in that the hearings a quo, and the courts a quo, failed to appreciate that they were disabled to render such decisions.

ACCORDINGLY IT IS ORDERED:

2. That, the Arbitrator's Interim Award dated 14 July 2010, the Arbitrator's Award dated 28 October 2010, the Labour Court in its Judgment No. LC/H/87/14, the Supreme Court in its Judgment No. SC58-15, the Arbitrator's Interim Arbitration Award of 26 July 2017, the Labour Court's Judgment No. LC/H/279/2018, the Labour Court's Judgment No. LC/H/232/2019 and the Labour Court's Judgment No. LC/H/23/2021C be and are hereby declared null and void and of no force or effect and are set aside.

3. That, the dismissal of the applicant from employment by the first respondent's Board and the first respondent, on 19 May 2009, was unlawful, null and void and accordingly, it is hereby set aside.

4. That, the first respondent be and is hereby ordered to pay the applicant his arrear salary, allowances, and benefits with effect from 1 March 2009.

5. That, the respondents (if they oppose this application) jointly and severally pay the costs of this application the one paying the other to be absolved.”

The Labour Court had to decide whether or not the application for referral on the questions, as framed in the draft, had merit.

The application for referral was determined on the merits by the Labour Court.

The reasoning by the court, in such an application, is an important factor in assessing whether or not the court exercised its mind properly in coming to the conclusion that the application was frivolous or vexatious. It is therefore necessary to set out the reasoning in extenso.

The learned judge of the Labour Court stated:

“The issues that the applicant is seeking to raise are not directly relevant, or do not arise from the proceedings before the court. No constitutional infringement has been alleged in relation to the proceedings of the application for leave to appeal. The applicant seeks to impugn all decisions that have been handed down and all awards that have ever been handed down in his case, and they are not few considering that his dismissal was in May 2009, and, to date, the matter is still in the courts.

It has been to the Supreme Court, the then apex court of the land, and back.

The challenges that are now being raised as constitutional issues were decided up to the Supreme Court level and cannot now be revisited, and, if they must, it cannot be this Court that can revisit a decision of the Supreme Court.

The Labour Court has no such jurisdiction.

The issues also raised as constitutional issues must also be such that the Labour Court has jurisdiction over them. The Labour Court has no powers of reviewing process that has been through the courts up to Supreme Court. This court can also not even review decisions of other Judges of the Labour Court which were handed down by the other Judges. The court cannot even review actions taken by management at the respondent workplace unless it is referred through the proper channels.

For example, one of the alleged constitutional breach alleged is 'The most serious infringement of the applicant's fundamental rights is the fact that the applicant was unlawfully dismissed without any misconduct charges being laid against him, let alone, without following appropriate procedure in termination of the applicant's contract of employment….,.'

That this was a breach of the applicant's contract was settled up to the Supreme Court level and he was awarded damages for the unfair loss of his employment.

We cannot keep on going back to the breaches which have already been settled by the courts.

There must be an end to litigation; once the Supreme Court settled the dispute, that is the end of the road, save for the quantification issues.

The applicant alleges that all the awards, all the Labour Court judgments, and the Supreme Court judgments were disabled.

If there was anything wrong with the Supreme Court judgment, it cannot be brought back to the arbitrators and the Labour Court.

The issues raised, the manner in which they are being raised, seem to lend credence to the fact that the appellant is just being frivolous and vexatious.

In deciding whether the matter being raised is frivolous, the court has been referred to the case of Martin v Attorney–General and Anor 1993 (1) ZLR 153 (S).

In that case, the court stated that:

'In the context of section 24(2), the word 'frivolous' connotes, in its ordinary and natural meaning, the raising of a question marked by lack of seriousness, one inconsistent with logic and good sense, and clearly so groundless and devoid of merit that a prudent person could not possibly expect to obtain relief from it.

The word 'vexatious' in contradistinction, is used in the sense of the question being put forward for the purpose of causing annoyance to the opposing party, in the full appreciation that it cannot succeed; it is not raised bona fide, and, a referral would be to permit the opponent to be vexed under a form of a legal process that was baseless.'

It is this Court's considered view, that, in raising preliminary points which seek to challenge a decision of the Supreme Court before the arbitrator, and, again, before the Labour Court and also in seeking to reopen the dispute on the merits of the fairness of the decision when the Supreme Court has already pronounced itself on that issue, the applicant's conduct is indeed marked by a lack of seriousness and the conduct is inconsistent with logic and good sense.

He surely cannot expect to succeed in getting the arbitrator, and this court, to review a decision by the Supreme Court.

The applicant cannot seriously expect the arbitrator and the Labour Court to re-open the dispute at this stage.

The applicant must be taken to appreciate that he cannot succeed. He is merely being vexatious. In the result, the application is held to be frivolous and vexatious.”

A perusal of the draft order attached to the application for referral to the Constitutional Court for determination on the merits reveals that it is the same relief as sought in the main application sought to be filed herein.

When regard is had to the judgment of the court a quo, it is evident that the learned judge considered whether the application for referral was justified. The learned judge was alive to the requirement that the court exercises its mind on the question of whether the request for referral was frivolous or vexatious.

The court sought reliance from the dicta in Martin v Attorney General and Anor 1993 (1) ZLR 153 (S) as is evident from the judgment of the court a quo above.

What is at issue for consideration herein is whether or not a person is precluded from applying to this Court for redress, under section 85 of the Constitution, where an application for referral is refused by a subordinate court.

The question posed herein was discussed and decided in Martin v Attorney General and Anor 1993 (1) ZLR 153 (S) wherein the court stated at p156D-F:

“The fallacy of the contention is self-evident. Suppose that a judicial officer, solely due to animosity towards an accused, in bad faith and without any warrant, were to rule that the question raised by him was frivolous or vexatious and so order his remand in custody pending trial. Could it then be said that the accused was only entitled to approach the Supreme Court for relief under section 24(3)?

I think not.

Such action by the judicial officer concerned would, as mentioned before, itself constitute an infringement of the accused's entitlement to protection of the law. Moreover, and most importantly, since at the conclusion of any remand proceedings there is no right of appeal, no remedy under section 24(3) would be available to that accused.”

Section 24(3) of the former Constitution, which was under consideration in Martin v Attorney-General and Anor 1993 (1) ZLR 153 (S) provided as follows:

“Where, in any proceedings such as are mentioned in subsection (2), any such question as is therein mentioned is not referred to the Supreme Court, then, without prejudice to the right to raise that question on any appeal from the determination of the court in those proceedings, no application for the determination of that question shall lie to the Supreme Court under subsection (1).”

In construing the section, the court went on to state, at p158F–159A:

“On the other hand, if a judicial officer, after applying conscientious and objective thought to the question raised in the proceedings before him, were to express the opinion that it was frivolous or vexatious, the requesting party would, in consequence, have no locus standi to apply to the Supreme Court for redress under section 24(1).

He would only be entitled, if an appeal lay from the determination of the proceedings, to raise the question in reliance upon the provisions of section 24(3).

For these reasons, I am satisfied that the present application was correctly brought under section 24(1) of the Constitution. The order made by the magistrate was, in the circumstances, beyond his jurisdiction. This court must now place itself in the position it would have been had the magistrate, as he ought to have done, referred to it the question raised before him."

However, in a subsequent matter, S v Mbire 1997 (1) ZLR 579, the Supreme Court spelt out, that, it was only in rare and special situations, such as were found to exist in Martin v Attorney-General and Anor 1993 (1) ZLR 153 (S) that an application under section 24(1) would be entertained against a refusal for referral under section 24(2).

The applicant seeks leave for access to the Constitutional Court in terms of section 167(5) of the Constitution.

When regard is had to the dicta in Martin v Attorney General and Anor 1993 (1) ZLR 153 (S) it is clear, that, once a finding is made that the application for referral is frivolous or vexatious, the requesting party is precluded from approaching the court under section 85 of the Constitution for the determination of the question.

The position is different where the requesting party alleges that those proceedings, on their own, violated his right.

That is not the contention in casu.

The applicant intends to obtain an omnibus order for the setting aside of all proceedings between himself and the respondent.

What is evident is that the Labour Court has made a determination of the questions sought to be raised by the applicant and found no merit in the alleged constitutional violations. The court made a decision that there must be finality to litigation and that there is no legal basis, on the papers filed by the applicant, to substantiate an allegation of the violation of his rights. The court stated, that, there is no legal recourse open to the applicant to have all the processes surrounding his dispute with the third respondent to be reopened.

This is the relief he seeks before the Constitutional Court.

A pronouncement having been made on the issue, it is now res judicata. The judgment of the Labour Court is extant and remains so until and unless set aside. It has not been set aside and binds all parties thereto.

In view of the position of the Constitutional Court, as a specialised court, an applicant for direct access must show that it is in the interests of justice for access to be granted.

One of the factors for consideration by the Constitutional Court is whether or not the application has prospects of success.

In Lytton Investments (Pvt) Ltd v Standard Chartered Bank Limited and Another CC11-18, the court stated:

“The Court turns to determine the question whether the applicant has shown that direct access to it is in the interests of justice. Two factors have to be satisfied:

(i) The first is that the applicant must state facts or grounds, in the founding affidavit, the consideration of which would lead to the finding, that, it is in the interests of justice to have the constitutional matter placed before the Court directly, instead of it being heard and determined by a lower court with concurrent jurisdiction.

The second factor is that the applicant must set out, in the founding affidavit, facts or grounds that show that the main application has prospects of success should direct access be granted.”

The Constitutional Court has spelt out what an applicant is required to establish in order to gain access to its portal.

In casu, the applicant has failed to show that the application has prospects of success.

The Labour Court determined that the application was frivolous and vexatious. That judgment precludes him from making an application for direct access.

The prospects of success of the main application have been found wanting. Accordingly, unless and until the judgment is set aside, the parties hereto must adhere to it.

In the premises, the application is dismissed with no order as to costs.

SC31-12 : ROBERT DOMBODZVUKU vs CMED (PVT) LTD
Ruled By: OMERJEE AJA

This is an application for condonation for late noting of appeal and extension of time within which to note an appeal.

The background relevant to the determination of this matter is as follows:

In July 2009, the applicant purported to note an appeal against a judgment of the Labour Court. On 30 October 2009, the applicant made an application for condonation for late noting of appeal and extension of time within which to note an appeal in this Court. The application was granted by ZIYAMBI JA on 21 December 2009.

The order given reads as follows:

“IT IS ORDERED THAT:

1. The applicant be and is hereby granted leave to note an appeal against the entire judgment of the Honourable B.T. Chivizhe, President of the Labour Court, under Case No; LC/H218/2008 dated 24 February 2009, and extension of time within which to appeal.

2. The applicant shall file his notice and grounds of appeal within 5 days of the date of this order.”

The applicant proceeded to note his appeal.

The appeal was set down for hearing on 16 March 2010. On that day, the respondent raised a point in limine to the effect that there was no proper appeal before the court as the applicant had failed to comply with the Rules of this Court, in particular, Rule 4(1) of the Supreme Court (Miscellaneous Appeals and References) Rules 1975.

This Rule provides, that, the notice of appeal shall be served upon the Labour Court Registrar.

Such service, as required, was not done, and, as a result, the matter was struck off the roll for non-compliance with this particular Rule.

At that stage, there was no proper appeal pending before this Court.

On 18 March 2010, after having regularized the defects in his notice of appeal, the applicant approached this Court, for the second time, with an application for condonation for late noting of appeal and extension of time within which to note an appeal.

The respondent opposed the application, but, filed his notice of opposition out of time.

The applicant's application was then set down for hearing on 20 October 2010 before CHEDA AJA as an unopposed matter.

The matter proceeded on this day and judgment was reserved. It was then delivered on 30 August 2011.

It was on this day that the applicant's application for condonation for late noting of appeal and extension of time within which to note an appeal was dismissed.

CHEDA AJA went further and held that there were no prospects of success on appeal.

In dismissing the application, the learned judge placed reliance on the principles outlined in the case of De Kuszaba-Dabrowskiet Uxor v Steel NO 1966 RLR 60 (A).

Aggrieved by the decision of CHEDA AJA, the applicant, on 1 June 2012, made another application for condonation for late noting of appeal and extension of time within which to note an appeal for the third time.

The application was placed before me.

The application was opposed.

The applicant filed his heads of argument on 22 June 2012. The respondent did not file any heads of argument.

Counsel for the respondent submitted, that, he had briefed an advocate who was supposed to draft heads of argument and file them, but, the advocate had failed to do so.

Counsel for the respondent apologized and stated that he would present oral submissions.

At the commencement of the hearing, counsel for the applicant was asked as to whether or not the application filed ought to be heard by a single judge, sitting in chambers or by three judges in open court.

Following consultations with counsel for the respondent, counsel for the applicant indicated that the matter should be heard in chambers before a single judge. Counsel for the respondent agreed with this approach.

The question now before me is whether there is any law that provides for such an application to be made.

If there does exist such legal authority, then, the next issue is whether or not CHEDA AJA had dealt with the merits of the application.

Counsel for the applicant submitted, that, there was no law upon which this application was based.

Counsel for the applicant stated, that, he required clarity as to whether or not the applicant had prospects of success on appeal since there were two “conflicting” decisions of this court on this aspect. He made reference to the decision by ZIYAMBI JA on 21 December 2009 and the other by CHEDA AJA on 30 August 2011.

Counsel for the applicant submitted, that, CHEDA AJA erred and misdirected himself by dismissing the second application for condonation and extension of time within which to appeal when ZIYAMBI JA had earlier acceded to a similar application.

The applicant in this application is asking me to overturn the findings of CHEDA AJA, that the appeal has no prospects of success.

The applicant is not clear whether the application before me is for review or is an appeal.

Section 26 of the Supreme Court Act provides as follows:

“26 Finality of decisions of Supreme Court

1. There shall be no appeal from any judgment or order of the Supreme Court.

2. The Supreme Court shall not be bound by any of its own judgments, rulings, or opinions or those of any of its predecessor.”

CHEDA AJA had determined that there were no prospects of success on appeal, even if the application was granted.

The applicant, in his affidavit, avers that the latest judgment delivered by CHEDA AJA contradicts an earlier judgment of ZIYAMBI JA on the same issue, that is, whether or not there were any prospects of success on appeal.

Both parties have agreed, that, in dismissing the application, CHEDA AJA was not bound by the decision of ZIYAMBI JA.

There is no written judgment that was handed down by ZIYAMBI JA. An order was granted by ZIYAMBI JA. There are no written reasons for the order.

It is however clear from the judgment delivered by CHEDA AJA, that, the learned judge consciously considered whether the applicant had any prospects of success on appeal. The learned judge dealt with this issue at length and came to the conclusion that the applicant had no prospects of success, even if the application for condonation was granted.

In my view, the judgment delivered by CHEDA AJA does not contradict the order granted by ZIYAMBI JA.

The effect of the judgment of CHEDA AJA was not to nullify an earlier order granted by ZIYAMBI JA because that earlier order was no longer operational.

ZIYAMBI JA had ordered the applicant to file a notice and grounds of appeal within five days of the date of the order. The applicant failed to comply with such an order. As a result of such failure to comply by the applicant, there was no appeal before this Court.

It is trite in our law, that, fatally defective compliance with the Rules regarding the filing of appeals cannot be condoned or amended.

KLOPPER JP in Hattingh v Pienaar 1977 (2) SA 182 (O)…, held that:

“…, a fatally defective compliance with the rules regarding the filing of appeals cannot be condoned or amended. What should actually be applied for is an extension of time within which to comply with the relevant rule.”

This position was also confirmed and applied by this Court in Jensen v Acavalos 1993 (1) ZLR 216 (S)…, where KORSA JA stated that:

“…, a notice of appeal which does not comply with the rules is fatally defective and invalid. That is to say, it is a nullity. It is not only bad but incurably bad…, the appeal must be struck off the roll with costs.”

The notice of appeal that was filed by the applicant was not only invalid but was a nullity. That is the reason why the appeal was struck off the roll on 16 March 2010.

Effectively, the order issued by ZIYAMBI JA was no longer operational.

The only way this matter could be brought back to this Court was through a fresh application for condonation for the late noting of appeal and extension of time within which to note an appeal.

This is what the appellant did.

That application was placed before CHEDA AJA and it was dismissed.

It is apparent from an analysis of the facts before me, that, the order by ZIYAMBI JA gave the applicant a chance to have his appeal heard but the applicant wasted it by not complying with the terms of the order. The applicant himself is to blame for what transpired on 16 March 2010 when his appeal was struck off the roll.

There is no merit in this application at all. There is no basis at law upon which I can entertain such an application.

I find that the order granted by ZIYAMBI JA, and the judgment by CHEDA JA, do not contradict each other. This matter has been dealt with on the merits and disposed of by CHEDA AJA who made a ruling on the merits of the matter.

In his findings on p7 of the judgment, CHEDA AJA said this:

“The appellants and their legal practitioners took a calculated risk that the matter would proceed without them.

Worse still, they left without responding to, or refuting the charges against them. They declined the opportunity to put forward their defences to the allegations. I find no fault in the Labour Court holding, that, the appellants waived their rights to be heard by walking out of the disciplinary proceedings.

In view of the above, I am satisfied that there are no prospects of success if leave to appeal is granted.”…,.

This is a clear indication that the learned judge had dealt with the merits of this application.

The effect of the judgment of CHEDA AJA was to bring finality to this matter. I cannot entertain the same application again and make findings on the merits because a ruling has been already made by CHEDA AJA. The parties are enjoined to honour the judgment and abide by its terms.

There is need to bring finality to litigation.

This is a case where the principle of res judicata applies.

The principle of res judicata has been pronounced by this Court in various cases, including the case of O'shea v Chiunda 1999 (1) ZLR 333 (S)…, where SANDURA JA held that:

“res judicata applies where the two actions are between the same parties, or their successors in title, concerning the same subject matter and founded on the same cause of action.”

Counsel for the applicant conceded that this application is the same as the one that was dismissed by CHEDA AJA on 30 August 2011.

In Wolfeden v Jackson 1985 (2) ZLR 313…, GUBBAY JA…, stated as follows;

“The exception rei judicatae is based principally upon the public interest, that, there must be an end to litigation and that the authority rested in judicial decisions be given effect to, even if erroneous: see Le Roux en'n Anderv Le Roux 1967 (1) SA 446 (A) at 461H. It is a form of estoppel and means that where a final and definitive judgment is delivered by a competent court, the parties to that judgment or their privies…, are not permitted its correctness.”

This court is a creature of statute and it operates within the confines of the enabling Act.

The applicant conceded, that, there is no law that provides for such an application. The relief sought is not provided for by law. Accordingly, this application must therefore fail....,.

The application is hereby dismissed with costs.

HH25-12 : TAFIREYI NYIKADZINO vs JOHN ASHER and MINISTER OF LANDS & LAND RESETTLEMENT and DEPUTY SHERIFF HARARE
Ruled By: BHUNU J

On 12 June 2007, the applicant was issued with an offer letter under the Land Reform and Resettlement Programme (Model A2 Phase II) authorizing him to lawfully hold, occupy, and use the whole of subdivision 8 of Welston in Harare in the District of Mashonaland East Province approximately 42.07 hectares in extent.

The applicant has since taken occupation of that land on the strength of the offer letter.

The first respondent is the former owner of the land in question.

Aggrieved by the applicant's conduct in taking occupation of the land, he sued and obtained a spoliation order under case number HC612/09 authorizing him to eject the applicant from the land.

Dissatisfied with that judgment, the applicant appealed to the Supreme Court under case number SC43/09.

This court later ruled, that, the initial judgment being an interlocutory judgment could not be appealed against without leave of the court. As a result, no heads of argument were filed with the Supreme Court.

On 16 October 2009, the Supreme Court ruled, in terms of Rule 44 of its Rules, that the appeal had been abandoned.

Despite that ruling, the first respondent did not seek to enforce the spoliation order granted to him by this Court until almost two years later when he issued a writ of execution.

The spoliation order was issued before the Supreme Court had clarified the law in respect of land disputes of this nature.

Since then, the Supreme Court has clarified the law in the landmark decision of Commercial Farmers Union & 9 Ors v The Minister of Lands and Rural Resettlement & 6 Ors SC31-10.

In that case, the learned CHIEF JUSTICE had this to say at pp21 and 23 of the cyclostyled judgment:

“On the other hand, section 3 of the Act criminalizes the continued occupation of acquired land by the owners or occupiers of land acquired in terms of section 16B of the Constitution beyond the prescribed period. The Act is very explicit, that, failure to vacate the acquired land by the previous owner, after the prescribed period, is a criminal offence. It is quite clear from the language of section 3 of the Act that the individual applicants, as former owners or occupiers of the acquired land, have no legal rights of any description in respect of the acquired land once the prescribed period has expired….,.

The holders of the offer letters, permits or land settlement leases have the right of occupation and should be assisted by the courts, the police, and other public officials to assert their rights. The individual applicants, as former owners or occupiers of acquired land, lost all rights to the acquired land by operation of the law. The lost rights have been acquired by the holders of offer letters, permits or land settlement leases. Given this legal position, it is the holders of offer letters, permits and land settlement leases, and not the former owners or occupiers, who should be assisted by public officials in the assertion of their rights.”…,.

The applicant now seeks an order staying execution while he seeks leave to appeal out of time.

It appears to me that there is merit in this application.

On the strength of the law, as now articulated by the Supreme Court, it would appear that the first respondent may have been divested of any right to own, occupy, and use the land in dispute.

His intended occupation of the land now constitutes a criminal offence and the court cannot sanction an illegality.

That being the case, the application can only succeed.

In saying this, I am mindful of the first respondent's argument, that, peri-urban land is not susceptible to compulsory acquisition.

That position, however, needs to be clarified by the Supreme Court before the first respondent can lawfully occupy the disputed land.

It is accordingly ordered:

1. That, the execution of the Provisional Order issued under case number HC612/09 be and is hereby stayed pending an application for leave to appeal out of time to be lodged by the applicant in the Supreme Court in respect of case number HC1020/09.

2. That, such leave to appeal shall be lodged in the Supreme Court within seven days of granting this order.

3. That, in the event that such appeal is not lodged within the time-frame aforesaid, this order shall automatically cease to be of any force or effect. With the result that execution of the Provisional Order issued under case number 612/09 shall proceed without the need for further application by the first respondent.

4. That, this order shall not be construed as authorizing the first respondent to occupy, or use, the disputed land without a Court Order as such occupation might constitute an illegality.

5. There shall be no order as to costs, but, in the event that execution proceeds pursuant to paragraph 3 above, the applicant shall bear the first respondent's costs on a legal practitioner and client scale in respect of these proceedings and the resultant costs, if any, of the subsequent execution aforesaid.

SERVICE OF THE ORDER

That, leave be and is hereby granted to the applicant's legal practitioners, or the Deputy Sheriff /Messenger of Court, to attend to the service of this Order forthwith upon the respondents in accordance with the rules of the High Court of Zimbabwe.

HH93-13 : SHEILA GREENLAND vs ZIMBABWE COMMUNITY HEALTH INTERVENTION RESEARCH PROJECT (ZICHIRE)
Ruled By: MATHONSI J

Litigants in this country are fast developing this unacceptable and indeed detestful habit of trifling with courts of law, and, in the process, succeeding in bringing the courts to disrepute.

There is no other way of describing the opposition to this application for registration of an arbitral award made against the respondent by D Mudzengi, an arbitrator, on 7 June 2011, than to say that it is trifling with the court in a regrettable manner.

The applicant was employed by the respondent, and, from the papers before me, she is still so employed, as a Project Co-ordinator/Manager.

The respondent is a non-governmental organisation running two health related projects from two different premises, namely, 28 Van Praagh Avenue and 35 Van Praagh Avenue in Milton Park, Harare.

A labour dispute arose between the parties when the respondent purported to suspend the applicant from employment. The dispute was eventually referred to arbitration, but, the respondent did not attend the arbitration proceedings.

The arbitrator made an award in favour of the applicant after observing that the respondent had been “contemptuous by not attending conciliation and arbitration proceedings despite being notified and having acknowledged receipt of such notification to attend same” to wit:

“7.1 The respondent is ordered to pay the applicant US$261,448=14 being arrear salary and benefits arising from the date of unlawful suspension to present day. Payment should be made within 14 days of this award.

7.2 The respondent is ordered to reinstate the applicant, unconditionally, upon receipt of this award. Alternatively, if reinstatement is no longer an option, the applicant should be paid damages in lieu of reinstatement to be agreed between the parties within 14 days of this order, failure which either party can approach the arbitrator for quantification.”

The applicant launched this application in terms of Article 35 of the First Schedule to the Abritration Act [Chapter 7:15] for registration of the arbitral award as an order of the High Court for enforcement purposes.

Whereupon, the respondent filed opposition, stating, in the opposing affidavit of Pesanai Chatikobo, the Project Co-ordinator, that, there are two distinct projects run by the respondent and that the respondent based at 28 Van Praagh was not part of the arbitration proceedings.

The respondent relied on the fact, that, the arbitral award was addressed to 35 Van Praagh, an address housing a different project of the respondent and that the address given at p1 of the application for registration is also 35 Van Praagh and not 28 Van Praagh.

Significantly, in the founding affidavit of the applicant, the respondent's address is given as 28 Van Praagh.

The respondent prayed that the draft order should be amended to reflect that it is against the respondent based at 35 Van Praagh Avenue and not 28 Van Praagh Avenue Milton Park, Harare.

In my view, it is an unacceptable splitting of hairs to separate the respondent on the basis of its two (2) addresses.

What is clear is that the respondent is piloting two (2) projects from two (2) different addresses. All the correspondence between the parties, including the employment contract, record the applicant's employer as Zichire of 28 Van Praagh Avenue Milton Park, Harare.

Not a single document bears number 35 Van Praagh Avenue, Milton Park, Harare.

For the respondent to then contest the application for registration of the award merely on the basis that the arbitrator captures the respondent's address as 35 Van Praagh, and the application also did the same, is a trifle and a complete waste of the court's time.

Indeed, it is the height of turpitude which clearly attracts punitive costs as a seal of the court's displeasure at such abuse of process.

The respondent has not given any sustainable reason why the award should not be registered.

The award remains extant and it is not for this court to question its propriety: see Ndlovu v Higher Learning Centre HB86-10…,.

The purported review application made by the respondent to the Labour Court, which strangely remains unresolved almost two years after it was filed, cannot be used as an instrument to block the registration of the award.

In any event, the respondent has not argued that it should.

HH125-15 : CONFEDERATION OF ZIMBABWE INDUSTRIES vs RITA MBATHA
Ruled By: MATHONSI J

This application is made in terms of Article 34 of the Uncitral Model Law which is a schedule to the Arbitration Act [Chapter 7:15] for the setting aside of an arbitral award issued by the arbitrator, K. Segula, on 29 July 2014, in terms of which she quantified the respondent's damages in lieu of reinstatement as $87,640 made up of:

(i) $1,400 May 2003 salary;
(ii) $50,400 damages;
(iii) $35,000 pension contributions; and
(iv) $840 cash in lieu of leave.

The applicant employed the respondent as a Personal Assistant to its President and Chief Executive Officer from 2 September 2002. The relationship between the parties deteriorated when the respondent complained of sexual harassment by her immediate superior. The employment contract was terminated giving rise to a labour dispute which eventually went to arbitration.

On 24 March 2014, the arbitrator issued an arbitral award, the import of which was that the respondent had been unfairly dismissed.

It is not clear from the papers why the matter took almost 10 years to finalise if indeed the respondent had been dismissed on 19 June 2003.

Whatever the case, the applicant did not reinstate the respondent, necessitating a second hearing before the arbitrator for purposes of quantification of damages due to the respondent....,.

I must, however, express my profound disappointment at the unacceptable delays that have occurred in this matter.

This dispute started more than 10 years ago and is still simmering now. Surely, there can be no excuse for delaying a labour dispute for such a lengthy period of time.

The respondent, who I must add, presented very sound and reasoned arguments, which, on any day, may turn a lot of legal practitioners green with envy, complains bitterly about the delay which she says has been orchestrated by the employer to frustrate her into abandoning her claim.

She has drawn my attention to the sentiments made in Khoza v Sasol Ltd where the court stated:

“I am satisfied, that, Mr Hinds and his office were grossly remiss, and that the employee, who all of this time was wallowing in poverty and in unemployment, was more than justified in approaching this court for relief rather than wait for the rusty old train of Sasol that takes its own time in its delivery of justice. I have yet to encounter a worse case where there is a more callous disregard of the prejudice that an employee suffers when the wheels of justice are deliberately slowed down by a resort of obfuscation by those who flaunt their financial muscle in what appears to be an obscene game of cat and mouse in which the only loser can be the employee.

In the unequal contest between a multi-billion rand empire that the employer is, and an unemployed person, as was submitted by Mr Spoor, all you have to do is to wear down the resolve of your less endowed opponent, tire him out and hope that he will go away, his quest for justice abandoned. Delay the day when he can get justice, and you can then thereby deny him justice.

I disagree.

As long as the courts are open, and as long as they purport to be the arbiters of fairness and justice between the powerful and the relatively powerless, so long will they not allow the sort of conduct displayed by the employer in this case to go without consequences.”

I associate myself fully with those remarks.

This matter ought to be brought to finality without further delay. The respondent has done everything within her power to achieve that, including the binding of the record, the application for set down, and payment of security for service of the notices of set down - as if she was the applicant. Throughout all that process, the applicant remained unconcerned, giving credence to the view that the applicant would like to perpetuate the matter endlessly.

SC37-23 : CFI HOLDINGS t/a FARM & CITY vs ANDREW MACHAYA
Ruled By: GUVAVA JA, CHATUKUTA JA and MWAYERA JA

COSTSThe respondent prayed for costs on the legal practitioner and client scale. Counsel for the respondent submitted, that, the appeal was frivolous and vexatious, and intended at frustrating the respondent.The prayer was resisted by the appellant.It has taken twenty-three years for the matter to be finalized. The decision of the ...

COSTS

The respondent prayed for costs on the legal practitioner and client scale. Counsel for the respondent submitted, that, the appeal was frivolous and vexatious, and intended at frustrating the respondent.

The prayer was resisted by the appellant.

It has taken twenty-three years for the matter to be finalized. The decision of the court a quo is beyond reproach. The remarks by MATHONSI J…, in Wangayi v Mudukuti HB155-17 are apt. In finding that costs on a higher scale were warranted, he remarked that:

“There must be finality to litigation and courts of law should not be abused in that manner by litigants with wounded pride and a lot of money to waste fighting personal battles in the courts. Nothing is being served here other than an itching ego seeking a massage in the wrong place.”

The appellant has hounded the respondent for the past twenty-three years. The appellant's pride has been wounded by the numerous successes of the respondent, who is now in his late 60s. It has therefore sought to frustrate the respondent from benefitting from the judgments in his favour.

What is evident is that the judgment of the Labour Court was handed down on 25 September 2020. The appellant failed to prosecute its application for leave to appeal in the Labour Court. The application having been considered abandoned on 1 December 2020, the appellant only sought the reinstatement of the application on 27 May 2021.

As at the date of hearing of this appeal, on 28 January 2022, the appellant failed to controvert the averments by the respondent on the history of the application for leave to appeal. It failed to confide in the court as to the status of the application for leave or the application for condonation for failure to apply timeously for reinstatement of the application for leave.

The appellant seems to have failed to pursue the remedy available to it that would enable it to challenge the decision of the Labour Court.

It appears that the appellant is dangling the respondent on a string so that he does not realize the benefit of the orders issued in his favour. Under the circumstances, the respondent is entitled to an order for costs on the legal practitioner and client scale.

It is accordingly ordered as follows:

The appeal be and is hereby dismissed with costs on the legal practitioner and client scale.

SC41-23 : CASSIAN MANUHWA vs SEEDCO ZIMBABWE (PRIVATE) LIMITED
Ruled By: GWAUNZA DCJ, KUDYA JA and MWAYERA JA

The appellant appeals against the whole judgment of the Labour Court (the court a quo), which was handed down on 9 January 2015. The court a quo dismissed his appeal against the determination of the disciplinary authority, which found him guilty of misconduct and dismissed him from employment.The FactsThe appellant ...

The Facts

The appellant was employed by the respondent as a Sales Distribution Services Manager. He was suspended from employment without any salary or benefits on 13 December 2010. On 4 January 2011, he was charged, by the disciplinary authority, with an act of conduct or omission inconsistent with the fulfilment of the express or implied conditions of his contract of employment in contravention of section 4(a) of the Labour (National Code of Conduct) S.I.15/2006 (the National Employment Code).

He was alleged to have authorized the dispatch of seed maize valued at US$931,735=06 on credit to Nelmah Holdings (Pvt) Ltd (the agro-dealer) in violation of the requisite internal procedures of the respondent.

He contested the charge, but, was subsequently convicted thereof, on 13 January 2011, and dismissed with effect from the date of suspension.

He was legally represented at the hearing.

He raised two defences:

(i) The first was that he was verbally authorized by his immediate supervisor, Ivan Craig, to dispatch the seed maize to the agro-dealer.

(ii) The second was that the respondent's electronic credit management system broke down and disabled him from detecting the breach of the credit limit of the agro-dealer and stop the sales transactions in real time.

He, however, conceded that he was well versed with the respondent's manual pre-credit check system.

The disciplinary authority found his “evidence to be full of inconsistencies” and his “conduct reckless”. It held, that, Ivan Craig did not authorize him to dispatch the seed maize to the agro-dealer.

It was common cause, that, the appellant did not conduct any pre-credit checks. It was also common cause, that, the manual pre-credit checks preceded the credit sales and the electronic notification of the breach of a credit sale. It was further common cause, that, the respondent's electronic sales management system was down and could not, therefore, alert the Sales Office of any credit limit breach in real time.

The disciplinary authority found, that, by virtue of his seniority, the appellant knew the manual, internal pre-credit checking procedures required of him before he could authorize the sale of seed maize on credit. It, therefore held, that, the failure of the electronic system to flag the breach would not absolve him from physically verifying the credit limit and status of the agro-dealer before authorizing the sale.

Lastly, it found that even though the electronic warning system was down, he ignored the verbal warning given to him by the Credit Controller, one Thomas Mavhurumutse, on 22 October 2010 and on 28 October 2010, that, the agro-dealer had exceeded its credit limit. He, therefore, failed to stop any further deliveries to the prejudice of the respondent.

He was thus convicted of misconduct and duly dismissed from employment.

Aggrieved by the determination of the disciplinary authority, he filed an appeal and an application for review in the court a quo, raising 15 grounds of appeal against conviction, an additional 5 grounds against the penalty, and, a further, 4 grounds of review.

The Contentions a quo

In the court a quo, counsel for the appellant impugned the disciplinary authority's factual findings on the basis, that, they constituted a gross misdirection, which amounted to a misdirection of law to which no sensible court applying its mind to the facts would have made.

He contended, that, the disciplinary authority incorrectly found that the appellant had mero motu authorized the dispatch of seed maize to the agro-dealer. He argued, that, the appellant had acted, as he was wont to do, on the verbal instruction of his immediate supervisor.

He contended, that, the contrary finding of the disciplinary authority ignored the testimony of Thomas Mavhurumutse and the contents of the input credit application forms submitted by the agro-dealer for its respective winter wheat and summer maize programs.

He argued, that, Thomas Mavhurumutse and the agro-dealer's representatives confirmed, that, Ivan Craig had verbally authorized the appellant to sell seed maize on credit.

He further argued, that, Ivan Craig's signature, for and on behalf of the respondent, on the summer maize application form signified two things:

(i) Firstly, the execution of a binding contract between the agro-dealer and the respondent.

(ii) Secondly, the written authorization by Ivan Craig to sell maize seed to the agro-dealer on credit.

He also contended, that, Bramwell Bushu, who replaced Ivan Craig as his immediate supervisor, had prior knowledge of the agro-dealer's credit transaction. This, so he argued, was demonstrated by the letter written to the agro-dealer by Bramwell Bushu on 6 October 2010. In the letter, Bramwell Bushu affirmed the respondent's ability to supply the agro dealer's seed maize requirements, specified in its letter dated 5 October 2010.

Counsel further argued, that, the failure by the respondent's electronic sales management system to block the excessive credit sales led the appellant to believe, that, it had an extant credit limit that had not yet been reached.

The appellant did not motivate any of his grounds of review in his main written heads of argument a quo. He was prompted to do so in his supplementary heads, which he filed in response to the respondent's heads.

He, therein, strenuously argued, that, his references to the conduct of Bramwell Bushu, which only came to his attention after the disciplinary proceedings, established his four grounds for review.

The only relevant ground for review was that Bramwell Bushu was an interested and biased party, who, for that reason, could not have represented the respondent as the complainant in the disciplinary proceedings. This was because he had concealed his letter of 6 October 2010 from the disciplinary authority.

The other three grounds for review related to the subsequent fraud charges levelled against Bramwell Bushu after the hearing, and the recovery efforts the appellant purportedly initiated and negotiated with the agro-dealer, after the misconduct came to light.

Per contra, the respondent made the following contentions in its written heads of argument a quo.

The application for review was fatally defective in that it sought to introduce new evidence which was not before the disciplinary authority.

This evidence, comprised the arrest of Bramwell Bushu for fraud, arising from the same transactions, subsequent to the disciplinary proceedings, and his letter of 6 October 2010.

The letter did not constitute a credit guarantee letter but was a supply guarantee letter.

In any event, the new evidence was not only irrelevant to the resolution of the dispute before the disciplinary authority but also negated the hallowed principle of finality to litigation.

It was improper for the appellant to seek to try out new issues on fresh facts simply because the first set of facts had proved inadequate.

The remaining grounds of review did not impugn the manner in which the disciplinary proceedings were conducted. They raised mitigatory factors, which rightly fall into the ambit of an appeal against sentence rather than the legality, procedural propriety, and rationality of the hearing.

Regarding the appeal, it argued that the determination was rationally linked to the facts and evidence and could not be interfered with on appeal. It submitted, that, the appellant was correctly convicted and rightly dismissed, because, the offence went to the substratum of and destroyed the employment relationship between the parties.

The findings of the court a quo

The court a quo reduced 15 grounds of appeal to a single issue of whether the hearing officer grossly misdirected himself by convicting the appellant on the evidence that was placed before him. Likewise, the issue raised against sentence was whether or not the sentence of dismissal was appropriate.

It held, that, the review grounds did not constitute proper grounds of review.

It however regarded them as abandoned as they had not been motivated, but, did not make a determination on the application.

Regarding the appeal, the court a quo held, that, the appellant authorized credit sales above the agro-dealer's US$20,000 limit. He did so without adhering to the prevailing manual procedures - which were known to him. He was required to follow them before authorizing the sale. The electronic credit sales management system would only be activated subsequent to the mandatory manual pre-credit checks. The malfunctioning of the electronic system did not, therefore, absolve him from making the manual pre-credit checks.

It also upheld the factual findings of the disciplinary authority, that, Ivan Craig did not authorize any sales in excess of the agro-dealer's credit limit. The findings were supported by the oral and written testimonies of Ivan Craig, Thomas Mavhurumutse, Melody, Locadia Marongwe and Muzadzi who all interacted with the appellant at all material times.

They were also confirmed by the documentary evidence and the probabilities.

It further found, that, the agro-dealer could not have concluded a summer seed maize credit sale contract with the respondent, as suggested for the first time on appeal by the appellant, without submitting the required credit insurance cover.

The court a quo further found, that, the probabilities demonstrated that the appellant's conversation with Ivan Craig, over the Zimbabwe Farmers Union (ZFU) seed maize voucher program, could not reasonably be construed as constituting the disputed verbal authorization. The court a quo, therefore, held that the appellant had disingenuously authorized the credit sale for the benefit of the agro-dealer in lieu of the ZFU voucher program.

By consent, the parties called, on appeal, the evidence of Ivan Craig and Bramwell Bushu and produced the letter written by the agro-dealer on 5 October 2010 and Bramwell Bushu's 6 October 2010 reply.

It found, that, Bramwell Bushu's reply did not constitute the requisite authority to open a credit sales trading account; its absence at the disciplinary hearing did not prejudice the appellant and its production thereat would have served no useful purpose.

The court a quo, consequently, dismissed the appeal with no order as to costs. It, however, did not pronounce itself on the application for review.

The grounds of appeal

Irked by the decision of the court a quo, the appellant appeals to this court on the following grounds of appeal:

“1. The court a quo erred at law in confirming the appellant's dismissal when there was no evidence that the appellant acted in a manner inconsistent with the fulfillment of the express or implied conditions of his contract of employment.

2. The court a quo erred at law in confirming the appellant's dismissal contrary to the evidence of Ivan Craig and Bramwell Bushu which exonerated the appellant of any wrongdoing.

3. The court a quo erred at law in confirming the appellant's dismissal for misconduct, yet the record clearly shows that appellant sought authorization before dispatching seed to Nelmah.”

He seeks the success of the appeal with costs, the vacation of the court a quo's judgment, and its substitution with an order granting both the appeal and the application for review with costs, his reinstatement with salary and other benefits, alternatively, damages, which may be computed by the Labour Court, if the parties fail to agree thereon within 30 days of the substituted order.

At the commencement of the hearing, counsel for the appellant moved for the addition of two other grounds of appeal. After some initial opposition, counsel for the respondent conceded to the addition thereof.

Consequently, the following two grounds of appeal were, by consent, added to the notice of appeal as numbers:

(4) The court a quo erred in finding, that, the appellant's first ground of review, alleging interest in the cause, did not raise a review ground, and, a fortiori, having heard new evidence on review, in failing to record the full evidence given by the parties and to determine the effect of the new evidence on that review ground; and

(5) The court a quo erred in groundlessly commenting, that, the review application had been abandoned and in leaving the same hanging and undetermined.

The contentions before this Court

The preliminary applications

At the commencement of the hearing before this Court, counsel for the appellant took two preliminary applications:

(i) Firstly, he sought the vacation of the judgment of the court a quo and the remittal of the matter before a different judge.

This was because of the common cause fact, that, the transcript of the proceedings and notes of the presiding judge a quo could not be located after diligent search. The transcript and the notes could also not be reconstructed due to the 5-year time lapse between the dates on which judgment was handed down and the request for reconstruction was made.

(ii) Secondly, he sought the amendment of the notice of appeal by the addition of the two grounds that are set out in paragraph (18), above.

After interacting with the Court, counsel for the appellant abandoned the first application. He conceded, that, it was in the interests of the due administration of justice that there be finality to this matter, which has been raging between the parties for the past decade.

It was therefore dismissed.

SC50-23 : JANE HOVE vs BEREA MINING SYNDICATE and MO3 MINING SYNDICATE and OFFICER IN CHARGE, MINERALS FLORA AND FAUNA UNIT, ZVISHAVANE and PROVINCIAL MINING DIRECTOR, MIDLANDS and M J MUNODAWAFA
Ruled By: CHITAKUNYE JA

This is an opposed chamber application for condonation of non-compliance with Rule 38(1)(a) and extension of time within which to note an appeal made in terms of Rule 43(3) of the Supreme Court Rules 2018.FACTUAL BACKGROUNDIn August 2022, the applicant filed an urgent chamber application for an interdict against the ...

FACTUAL BACKGROUND

In August 2022, the applicant filed an urgent chamber application for an interdict against the respondents in the High Court, Bulawayo. In the application, the applicant sought to interdict the first and second respondents from carrying out any mining activities on the applicant's mining claims; namely, Berea 17, Berea 18, and Site 232 within certain co-ordinates.

The applicant, on the one hand, and the first and second respondents, on the other, have been involved in a dispute over mining claims boundaries for some time. The dispute has been before the High Court from as far back as March 2014 when the applicant approached the High Court in an urgent chamber application in HC386/14 seeking a provisional order against the respondents.

On 3 March 2014, the High Court granted an order in these terms:

1. The court orders and directs the fourth respondent to engage the Regional Mining Surveyor to conduct and prepare a comprehensive report pertaining to the dispute under Case No.HC386/14.

2. The matter be and is hereby postponed pending production of the report in para 1 above.

The fourth respondent was the Mining Commissioner N.O. (Masvingo Mining District).

On 14 August 2014, the Principal Mining Surveyor, in the Regional Mining Engineer's office, submitted his report to the Chief Government Mining Engineer in compliance with the above court order.

That report noted a number of irregularities in the disputed claims. These included, that, whilst the claim numbers remained the same, the sizes of the claims had been adjusted by enlarging some of them leading to claims encroaching into each other. The report therefore recommended, that, the claims should be adjusted down to the original sizes as at the time of initial registration, and that, in the process, the principle of priority rights should be applied.

A final order was granted in that case, almost 6 years later, on 24 February 2020, in the following terms:

1. The fourth respondent be and is hereby directed to implement the findings and remove encroachments on the disputed claims in terms of the survey report dated 14 August 2014 within 14 days of this order.

On 4 June 2021, the Chief Government Mining Engineer (CGME), M.J. Munodawafa, prepared his report on how the findings of 14 August 2014, as mandated by the court order of 24 February 2020, were to be implemented by reverting to the original claim boundaries as at the time of original registration of the parties respective claims. That report included a map and an explanation of how each claim was to be affected.

The parties were duly advised of the Chief Government Mining Engineer's report on the implementation of the resolution to the dispute by letter dated 31 January 2022.

On 28 August 2022 (or 22 August 2022 as contended by the respondents) the applicant filed another urgent chamber application in the court a quo seeking to interdict the first and second respondents from conducting mining activities on the disputed claims.

The application was opposed by the first and second respondents and judgment thereof was rendered on 20 October 2022 in the presence of counsel for the contesting parties. The applicant was also present when judgment was handed down.

The judgment having been handed down on 20 October 2022, any aggrieved party had 15 days from that date within which to note an appeal in terms of Rule 38(1)(a) of the Supreme Court Rules 2018.

That period lapsed on 10 November 2022, and, by that time, no party had filed or noted an appeal.

When the applicant sought to appeal against that judgment, she was out of time; hence, this application for condonation and extension of time within which to appeal which was issued on 5 December 2022.

In making this application, the applicant alleged, that, judgment in the matter was handed down on 21 October 2022.

Upon requesting the written judgment, the applicant's legal practitioners were initially advised, that, the record was with the judge who had handed down the judgment, and, later on, that the judgment was available on the Integrated Electronic Case Management System (IECMS) platform.

The applicant alleged, that, her legal practitioner's efforts to log in to the system and retrieve the said judgment were futile. On 2 November 2022, efforts were made to obtain a copy of the judgment from the first respondent's legal practitioner but only a part of the judgment was availed.

The applicant further alleged, that, her legal practitioners only managed to get the written judgment on 7 November 2022, which judgment she became aware of on 8 November 2022.

Thereafter, she met her legal practitioners on 12 November 2022 and instructed them to appeal against the court a quo's decision. This was, however, after the expiry of the dies induciae on 10 November 2022, thus, necessitating the filing of this application.

She also alleged, that, her legal practitioners unsuccessfully tried to upload the current application on the Integrated Electronic Case Management System (IECMS) platform on 21 November 2022. The application was only successfully uploaded on the platform on 5 December 2022 due to technical breakdowns within the IECMS platform.

The application is opposed by the first and second respondents.

The first respondent, in its opposing affidavit, contended, that, the applicant did not file her urgent chamber application for an interdict on 28 August 2022 but on 22 August 2022, with the judgment being handed down on 20 October 2022 and not on 21 October, as submitted by the applicant.

The first respondent averred, that, its legal practitioners got a copy of the judgment from the High Court Civil Registry on 21 October, on which date the applicant's legal practitioners could also have obtained the judgment.

It contended, that, there is no evidence to prove the assertion that the applicant was advised by the Registrar of the court a quo that the record was still before the judge who had delivered the judgment.

The first respondent contended, that, the applicant was only trying to file the appeal in light of the fact that the first and second respondents started mining operations in November 2022, which the applicant seeks to stop.

It further contended, that, the applicant is misleading the court by stating, that, her legal practitioners tried to access the judgment on the Integrated Electronic Case Management System (IECMS) platform as she does not have substantive evidence to support her claim. In any case, the matter had not been filed through the IECMS platform.

There was thus no reasonable explanation why they obtained the judgment on 7 November 2022 despite being aware of its existence prior to that date, and that the first respondent's legal practitioner had obtained the judgment a day after the handing down on 20 October 2022.

On the assertion that the first respondent's legal practitioners had given the applicant's legal practitioner a part of the judgment, counsel for the first and second respondents deposed to an affidavit refuting such allegation. He denied being approached by the applicant or her legal practitioners for a copy of the judgment.

On prospects of success of the appeal, the first respondent contended, that, the applicant's intended appeal had no prospects of success as the dispute between the parties was resolved. It thus prayed for the dismissal of the applicant's application.

The second respondent associated itself with the averments of the first respondent.

The two respondents also averred, that, a large chunk of the applicant's founding affidavit comprised inadmissible hearsay.

They contended, that, once that chunk is expunged, there is virtually no explanation for the delay in noting the appeal within the stipulated period.

Equally, there is no explanation for the delay in filing this application upon realizing that she was out of time.

The two respondents contended, that, the applicant's legal practitioner ought to have deposed to an affidavit confirming the challenges alluded to by the applicant in obtaining the judgment and in noting the appeal.

THE LAW

It is trite, that, for an application for condonation for non-compliance with the Rules and for extension of time within which to note an appeal to succeed, the applicant should satisfy the court, that, he or she has a reasonable explanation for the delay and non-compliance with the Rules and also establish that there are prospects of success of the appeal.

This position was reiterated in Forestry Commission v Moyo 1997 (1) ZLR 254 (S)…, wherein GUBBAY CJ set out factors to be considered in such an application as follows:

“(a) That, the delay involved was not inordinate, having regard to the circumstances of the case;

(b) That, there is a reasonable explanation for the delay;

(c) That, the prospects of success, should the application be granted, are good; and

(d) The possible prejudice to the other party should the application be granted.”

See also: Kombayi v Berkout 1988 (1) ZLR 53 (SC); Ester Mzite v Damafalls Investments (Pvt) Ltd SC21-18.

It is important to note, that, these factors are not individually decisive on whether the application for condonation for late noting of appeal and extension of time within which to appeal is granted.

They are considered conjunctively.

In Kodzwa v Secretary for Health & Anor 1999 (1) ZLR 313 (S), SANDURA JA remarked as follows:

“Whilst the presence of reasonable prospects of success on appeal is an important consideration which is relevant to the granting of condonation, it is not necessarily decisive. Thus, in the case of a flagrant breach of the rules, particularly where there is no acceptable explanation for it, the indulgence of condonation may be refused, whatever the merits of the appeal may be.”

See also: Director of Civil Aviation v Hall 1990 (2) ZLR 354 (S)…,.

APPLICATION OF THE LAW TO THE FACTS

2. Whether or not the Appeal has good prospects of success

Prospects of success refers to the question of whether the applicant has an arguable case on appeal.

In Essop v S [2016] ZASCA 114, the Court, in defining prospects of success, held that:

“What the test for reasonable prospects of success postulates is a dispassionate decision, based on the facts and the law, that, a court of appeal could reasonably arrive at a conclusion different to that of the trial court.

In order to succeed, therefore, the appellant must convince this court, on proper grounds, that, he has prospects of success on appeal and that those prospects are not remote, but, have a realistic chance of succeeding. More is required to be established than that there is a mere possibility of success, that the case is arguable on appeal, or that the case cannot be categorised as hopeless. There must, in other words, be a sound, rational, basis for the conclusion that there are prospects of success on appeal.”

In casu, the applicant avers that the intended appeal has good prospects of success.

The applicant alleged, that, the court a quo erred by finding that she had no prima facie right entitling her to the relief that she sought. The applicant's counsel submitted, that, in terms of the order granted under HC386/14, which order was based on a survey report dated 14 August 2014, she had been declared the legal owner of the mine in dispute and it had been found that the respondents were encroaching on her legally registered mine.

He further submitted, that, the court a quo mis-interpreted this order in the sense, that, another report, which was issued on 4 June 2021, replaced the one done on 14 August 2014.

I, however, find that the applicant's intended appeal does not enjoy good prospects of success.

Contrary to what the applicant states, the court a quo did not mis-interpret the judgment under case number HC386/14. The report of 4 June 2021 was produced in line with the court's order in HC386/14, and, in terms of that report, the mining areas which the applicant claims ownership over were found to have been irregularly over-pegged.

For instance, the claim Berea 17 was originally 4 hectares in extent, and yet, it now covered an area of 17 hectares, thus encroaching into another miner's claim that had been registered prior to the expansion.

The same was observed of claims Berea 18 and Site 232.

In compliance with the final court order of 24 February 2020, the recommendations of the Chief Government Mining Engineer, dated 4 June 2021, were availed to the parties on 31 January 2022 and the necessary adjustments were effected by the fourth respondent under case number HC386/14 on the disputed claims.

These recommendations were not challenged.

The net effect was, that, the mining claims were restored to their original positions to eliminate the dispute. This is what was done in the implementation of the court a quo's decision in HC386/14. The decision, and its implementation, did not affect ownership of the claims, but, simply, reduced the claims to their original sizes as at the time of original registration.

In the circumstances, there are no prospects of success on appeal. If anything, the applicant is simply intent on prolonging a dispute that was resolutely resolved. This will inevitably prejudice the respondents who are eager to comply with the adjusted claims and proceed with their mining activities.

This is a case where the applicant ought to be reminded of the need for finality to litigation.

As aptly noted by McNALLY JA in Ndebele v Ncube 1992 (1) ZLR 288 (S)…,.:

“It is the policy of the law, that, there should be finality in litigation.

On the other hand, one does not want to do injustice to litigants. But, it must be observed, that, in recent years, applications for rescission, for condonation, for leave to apply or appeal out of time, and for other relief arising out of delays, either by the individual or his lawyer, have rocketed in numbers. We are bombarded with excuses for failure to act. We are beginning to hear more appeals for charity than for justice. Incompetence is becoming a growth industry. Petty disputes are argued and then re-argued until the costs far exceed the capital amount in dispute. The time has come to remind the legal profession of the old adage, vigilantibus non dormientibus jura subveniunt; roughly translated, the law will help the vigilant but not the sluggard.”…,.

The applicant lamentably failed to justify the need to exercise my discretion in favour of granting her condonation and extension of time within which to note an appeal.

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Final Orders re: Finality in Litigation iro Approach, Decree of Perpetual Silence, Sitting on Judgment & Superannuation

HH283-17 : IGNATIUS MASAMBA vs THE SECRETARY – JUDICIAL SERVICE COMMISSION and MERCY GORONGOZA Ruled By: CHITAPI J

HH390-18 : MIDLANDS STATE UNIVERSITY vs ALOIS MATONGO Ruled By: MUZOFA J

CC09-20 : TUNGAMIRAI NYENGERA vs THE STATE Ruled By: MALABA CJ

SC54-06 : VIGOUR FUYANA vs NTOMBAZA MOYO Ruled By: CHIDYAUSIKU CJ

HB189-18 : CLAUDIUS MANAMELA and BRIGHTON NANGA and SIBONGILE MANAMELA vs ROSEWELL ZULU and APOSTOLIC FAITH MISSION OF AFRICA INTL and CLEMENT NYATHI and APOSTOLIC FAITH MISSION OF AFRICA Ruled By: MABHIKWA J

HH443-13 : JONAS MUSHOSHO vs LLOYD MUDIMU and THE DEPUTY SHERIFF Ruled By: CHIGUMBA J

View Appeal HH677-14 : MAXWELL SIBANDA vs ZAMBE NYIKA/GWASIRA and REGISTRAR OF DEEDS and EVERJOY MEDA Ruled By: MATANDA-MOYO J

SC19-21 : CHEVHU HOUSING CO-OPERATIVE SOCIETY LIMITED AND OTHERS vs CREST BREEDERS INTERNATIONAL (PVT) LTD AND MINISTER OF LANDS AND RURAL SETTLEMENTS Ruled By: BHUNU JA, MATHONSI JA and KUDYA AJA

SC22-21 : STONEWELL SEARCHES (PVT) LTD vs STONE HOLDINGS (PVT) LTD and MUTOKO CONSORTIUM and MOSES CHINHENGO N.O. Ruled By: GUVAVA JA, UCHENA JA and MAKONI JA

HH261-16 : KARNEC INVESTMENTS (PRIVATE) LIMITED and ROBERT STRONG vs ECONET WIRELESS (PRIVATE) LIMITED Ruled By: TSANGA J

HH272-22 : SLASHWOOD MINING (PVT) LTD and ZENIT GROUP LIMITED vs ONTAGE RESOURCES (PVT) LTD Ruled By: ZHOU J

View Appeal SC18-18 : SHORAI NZARA and AAROLA IDEHEN and AMOSOGE IDEHEN and OSARETIN IDEHEN vs CECILIA KASHUMBA N.O. and REGISTRAR OF DEEDS and MASTER OF THE HIGH COURT and TAFIRENYIKA KAMBARAMI Ruled By: GARWE JA, GUVAVA JA and UCHENA JA

SC81-21 : FRANK HUMBE vs DESMOND MUCHINA and SPARKLES SERVICES (PVT) LTD and GODFREY MUNYAMANA and SHERIFF OF ZIMBABWE and FADZAYI MUNYAMANA Ruled By: BHUNU JA, MATHONSI JA and KUDYA AJA

SC93-21 : RINOS TERERA vs GEORGE LOCK and CK HOLLAND t/a HOLLAND ESTATE AGENT and ZIMBABWE HOUSING COMPANY (PVT) LTD and THE REGISTRAR OF DEEDS Ruled By: CHITAKUNYE AJA

SC102-21 : DOVES FUNERAL ASSURANCE (PVT) LTD vs FERNABY INVESTMENTS (PVT) LTD and QUECOM ENGINEERING (PVT) LTD and DENNIS NGORIMA and STANDARD CHARTERED BANK LTD and HOMELAND REAL ESTATE and THE SHERIFF Ruled By: BHUNU JA, MATHONSI JA and CHITAKUNYE JA

HH974-15 : GUGULETHU HURASHA vs CENTRAL AFRICAN BUILDING SOCIETY and FIRST CAPITAL PLUS and ITAYI MUNYEZA and SHERIFF OF ZIMBABWE and MASTER OF THE HIGH COURT Ruled By: NDEWERE J

SC35-17 : LEONARD DZVAIRO vs KANGO PRODUCTS Ruled By: ZIYAMBI JA, GOWORA JA and GUVAVA JA

HB38-15 : SIBUCO TRADING (PVT) LTD and EDITH KATAMBARARE vs LEADERS (PVT) LTD and MESSENGER OF COURT Ruled By: MAKONESE J

HB57-15 : SIPIWO NKOMO vs MLWELIWENKULULEKO NCUBE Ruled By: MUTEMA J

HB134-15 : STANLEY NANZOMBE vs SICINGILE MASUKU (NEE MOYO) and THE SHERIFF OF ZIMBABWE and THE REGISTRAR OF DEEDS Ruled By: MAKONESE J

Appealed CC07-21 : MARX MUPUNGU vs MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and OTHERS Ruled By: GWAUNZA ACJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHAWAYO JCC, PATEL JCC and GUVAVA AJCC

HB12-21 : ADHESIVE PRODUCTS MANUFACTURERS (PVT) LTD vs PARKAM ENTERPRISES (PVT) LTD (Under provisional judicial management of N. Motsi) and ASSISTANT MASTER OF THE HIGH COURT N.O. Ruled By: DUBE-BANDA J

SC86-14 : W. CHOMUREMA and E. MUZOKOMBA vs TELONE Ruled By: GWAUNZA JA

HH435-15 : LADRAX INVESTMENTS (PVT) LTD vs IGNATIOUS CHIRENJE and RUTENDO CHIRENJE Ruled By: TSANGA J

HH330-16 : CITY OF HARARE vs TENDAI MASAMBA Ruled By: MAFUSIRE J

HH793-16 : MABWE MINERALS (PVT) LTD and TAPIWA GURUPIRA and TAG MINERALS ZIMBABWE (PVT) LTD and JOHN GROVES vs PETER VALENTINE and BASE MINERAL ZIMBABWE (PVT) LTD Ruled By: MANGOTA J

SC47-22 : ISMAIL LUNAT vs MOHAMMED PATEL Ruled By: CHATUKUTA JA

SC40-17 : FADZAI JOHN vs DELTA BEVERAGES LIMITED Ruled By: GUVAVA JA

SC41-21 : YSMIN MAHOMMED vs TAWURAYI KASHIRI Ruled By: KUDYA AJA

CC07-23 : RITA MBATHA vs VINCENT NCUBE and MESSENGER OF COURT Ruled By: PATEL JCC

CC09-23 : TENDAI MASHAMANDA vs BARIADE INVESTMENTS (PVT) LTD and PUWAYI CHIUTSI and REGISTRAR OF DEEDS and SHERIFF OF THE HIGH COURT and ELLIOT ROGERS and ATTORNEY GENERAL ZIMBABWE Ruled By: GARWE JCC, HLATSHWAYO JCC and PATEL JCC

CC10-21 : ERICKSON MVUDUDU vs AGRICULTURAL AND RURAL DEVELOPMENT AUTHORITY (ARDA) and ATTORNEY GENERAL OF ZIMBABWE Ruled By: GARWE JCC, MAKARAU JCC and GOWORA JCC

SC31-12 : ROBERT DOMBODZVUKU vs CMED (PVT) LTD Ruled By: OMERJEE AJA

HH25-12 : TAFIREYI NYIKADZINO vs JOHN ASHER and MINISTER OF LANDS & LAND RESETTLEMENT and DEPUTY SHERIFF HARARE Ruled By: BHUNU J

HH93-13 : SHEILA GREENLAND vs ZIMBABWE COMMUNITY HEALTH INTERVENTION RESEARCH PROJECT (ZICHIRE) Ruled By: MATHONSI J

HH125-15 : CONFEDERATION OF ZIMBABWE INDUSTRIES vs RITA MBATHA Ruled By: MATHONSI J

SC37-23 : CFI HOLDINGS t/a FARM & CITY vs ANDREW MACHAYA Ruled By: GUVAVA JA, CHATUKUTA JA and MWAYERA JA

SC41-23 : CASSIAN MANUHWA vs SEEDCO ZIMBABWE (PRIVATE) LIMITED Ruled By: GWAUNZA DCJ, KUDYA JA and MWAYERA JA

SC50-23 : JANE HOVE vs BEREA MINING SYNDICATE and MO3 MINING SYNDICATE and OFFICER IN CHARGE, MINERALS FLORA AND FAUNA UNIT, ZVISHAVANE and PROVINCIAL MINING DIRECTOR, MIDLANDS and M J MUNODAWAFA Ruled By: CHITAKUNYE JA

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Zimbabwe

HH283-17 : IGNATIUS MASAMBA vs THE SECRETARY – JUDICIAL SERVICE COMMISSION and MERCY GORONGOZA
Ruled By: CHITAPI J

HH390-18 : MIDLANDS STATE UNIVERSITY vs ALOIS MATONGO
Ruled By: MUZOFA J

CC09-20 : TUNGAMIRAI NYENGERA vs THE STATE
Ruled By: MALABA CJ

SC54-06 : VIGOUR FUYANA vs NTOMBAZA MOYO
Ruled By: CHIDYAUSIKU CJ

HB189-18 : CLAUDIUS MANAMELA and BRIGHTON NANGA and SIBONGILE MANAMELA vs ROSEWELL ZULU and APOSTOLIC FAITH MISSION OF AFRICA INTL and CLEMENT NYATHI and APOSTOLIC FAITH MISSION OF AFRICA
Ruled By: MABHIKWA J

HH443-13 : JONAS MUSHOSHO vs LLOYD MUDIMU and THE DEPUTY SHERIFF
Ruled By: CHIGUMBA J

View Appeal
HH677-14 : MAXWELL SIBANDA vs ZAMBE NYIKA/GWASIRA and REGISTRAR OF DEEDS and EVERJOY MEDA
Ruled By: MATANDA-MOYO J

SC19-21 : CHEVHU HOUSING CO-OPERATIVE SOCIETY LIMITED AND OTHERS vs CREST BREEDERS INTERNATIONAL (PVT) LTD AND MINISTER OF LANDS AND RURAL SETTLEMENTS
Ruled By: BHUNU JA, MATHONSI JA and KUDYA AJA

SC22-21 : STONEWELL SEARCHES (PVT) LTD vs STONE HOLDINGS (PVT) LTD and MUTOKO CONSORTIUM and MOSES CHINHENGO N.O.
Ruled By: GUVAVA JA, UCHENA JA and MAKONI JA

HH261-16 : KARNEC INVESTMENTS (PRIVATE) LIMITED and ROBERT STRONG vs ECONET WIRELESS (PRIVATE) LIMITED
Ruled By: TSANGA J

HH272-22 : SLASHWOOD MINING (PVT) LTD and ZENIT GROUP LIMITED vs ONTAGE RESOURCES (PVT) LTD
Ruled By: ZHOU J

View Appeal
SC18-18 : SHORAI NZARA and AAROLA IDEHEN and AMOSOGE IDEHEN and OSARETIN IDEHEN vs CECILIA KASHUMBA N.O. and REGISTRAR OF DEEDS and MASTER OF THE HIGH COURT and TAFIRENYIKA KAMBARAMI
Ruled By: GARWE JA, GUVAVA JA and UCHENA JA

SC81-21 : FRANK HUMBE vs DESMOND MUCHINA and SPARKLES SERVICES (PVT) LTD and GODFREY MUNYAMANA and SHERIFF OF ZIMBABWE and FADZAYI MUNYAMANA
Ruled By: BHUNU JA, MATHONSI JA and KUDYA AJA

SC93-21 : RINOS TERERA vs GEORGE LOCK and CK HOLLAND t/a HOLLAND ESTATE AGENT and ZIMBABWE HOUSING COMPANY (PVT) LTD and THE REGISTRAR OF DEEDS
Ruled By: CHITAKUNYE AJA

SC102-21 : DOVES FUNERAL ASSURANCE (PVT) LTD vs FERNABY INVESTMENTS (PVT) LTD and QUECOM ENGINEERING (PVT) LTD and DENNIS NGORIMA and STANDARD CHARTERED BANK LTD and HOMELAND REAL ESTATE and THE SHERIFF
Ruled By: BHUNU JA, MATHONSI JA and CHITAKUNYE JA

HH974-15 : GUGULETHU HURASHA vs CENTRAL AFRICAN BUILDING SOCIETY and FIRST CAPITAL PLUS and ITAYI MUNYEZA and SHERIFF OF ZIMBABWE and MASTER OF THE HIGH COURT
Ruled By: NDEWERE J

SC35-17 : LEONARD DZVAIRO vs KANGO PRODUCTS
Ruled By: ZIYAMBI JA, GOWORA JA and GUVAVA JA

HB38-15 : SIBUCO TRADING (PVT) LTD and EDITH KATAMBARARE vs LEADERS (PVT) LTD and MESSENGER OF COURT
Ruled By: MAKONESE J

HB57-15 : SIPIWO NKOMO vs MLWELIWENKULULEKO NCUBE
Ruled By: MUTEMA J

HB134-15 : STANLEY NANZOMBE vs SICINGILE MASUKU (NEE MOYO) and THE SHERIFF OF ZIMBABWE and THE REGISTRAR OF DEEDS
Ruled By: MAKONESE J

Appealed
CC07-21 : MARX MUPUNGU vs MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and OTHERS
Ruled By: GWAUNZA ACJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHAWAYO JCC, PATEL JCC and GUVAVA AJCC

HB12-21 : ADHESIVE PRODUCTS MANUFACTURERS (PVT) LTD vs PARKAM ENTERPRISES (PVT) LTD (Under provisional judicial management of N. Motsi) and ASSISTANT MASTER OF THE HIGH COURT N.O.
Ruled By: DUBE-BANDA J

SC86-14 : W. CHOMUREMA and E. MUZOKOMBA vs TELONE
Ruled By: GWAUNZA JA

HH435-15 : LADRAX INVESTMENTS (PVT) LTD vs IGNATIOUS CHIRENJE and RUTENDO CHIRENJE
Ruled By: TSANGA J

HH330-16 : CITY OF HARARE vs TENDAI MASAMBA
Ruled By: MAFUSIRE J

HH793-16 : MABWE MINERALS (PVT) LTD and TAPIWA GURUPIRA and TAG MINERALS ZIMBABWE (PVT) LTD and JOHN GROVES vs PETER VALENTINE and BASE MINERAL ZIMBABWE (PVT) LTD
Ruled By: MANGOTA J

SC47-22 : ISMAIL LUNAT vs MOHAMMED PATEL
Ruled By: CHATUKUTA JA

SC40-17 : FADZAI JOHN vs DELTA BEVERAGES LIMITED
Ruled By: GUVAVA JA

SC41-21 : YSMIN MAHOMMED vs TAWURAYI KASHIRI
Ruled By: KUDYA AJA

CC07-23 : RITA MBATHA vs VINCENT NCUBE and MESSENGER OF COURT
Ruled By: PATEL JCC

CC09-23 : TENDAI MASHAMANDA vs BARIADE INVESTMENTS (PVT) LTD and PUWAYI CHIUTSI and REGISTRAR OF DEEDS and SHERIFF OF THE HIGH COURT and ELLIOT ROGERS and ATTORNEY GENERAL ZIMBABWE
Ruled By: GARWE JCC, HLATSHWAYO JCC and PATEL JCC

CC10-21 : ERICKSON MVUDUDU vs AGRICULTURAL AND RURAL DEVELOPMENT AUTHORITY (ARDA) and ATTORNEY GENERAL OF ZIMBABWE
Ruled By: GARWE JCC, MAKARAU JCC and GOWORA JCC

SC31-12 : ROBERT DOMBODZVUKU vs CMED (PVT) LTD
Ruled By: OMERJEE AJA

HH25-12 : TAFIREYI NYIKADZINO vs JOHN ASHER and MINISTER OF LANDS & LAND RESETTLEMENT and DEPUTY SHERIFF HARARE
Ruled By: BHUNU J

HH93-13 : SHEILA GREENLAND vs ZIMBABWE COMMUNITY HEALTH INTERVENTION RESEARCH PROJECT (ZICHIRE)
Ruled By: MATHONSI J

HH125-15 : CONFEDERATION OF ZIMBABWE INDUSTRIES vs RITA MBATHA
Ruled By: MATHONSI J

SC37-23 : CFI HOLDINGS t/a FARM & CITY vs ANDREW MACHAYA
Ruled By: GUVAVA JA, CHATUKUTA JA and MWAYERA JA

SC41-23 : CASSIAN MANUHWA vs SEEDCO ZIMBABWE (PRIVATE) LIMITED
Ruled By: GWAUNZA DCJ, KUDYA JA and MWAYERA JA

SC50-23 : JANE HOVE vs BEREA MINING SYNDICATE and MO3 MINING SYNDICATE and OFFICER IN CHARGE, MINERALS FLORA AND FAUNA UNIT, ZVISHAVANE and PROVINCIAL MINING DIRECTOR, MIDLANDS and M J MUNODAWAFA
Ruled By: CHITAKUNYE JA